Law of Tort - Understanding Negligence and Liability

This article discusses the law of tort, specifically negligence and liability. It explains the duty of care, breach of duty, and causation, and provides examples from legal cases. It also highlights the rights of individuals to sue for damages in cases of negligence.

Running Head: LAW
Law of Tort
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Tort Law
Negligence
Negligence is described as one’s failure to exercise an appropriate and ethical form of care
when performing a duty. Acts of carelessness characterized by acts or omission that lead to
causation of injuries are called negligence. The consequence for negligence is damaged after
a plaintiff successfully proves that negligence existed. The backbone of negligence is that
employees and employers have the duty to carry out their activities with reasonable care by
understanding that foreseeable harm may be caused to people and property through
negligence. In cases where one suffers a loss due to negligence from a different person, he
or she has the right to sue that individual for damages so that a compensation is awarded.
Losses vary from physical injuries, psychiatric illnesses, harm to property and economic
losses. There are five main components that one has to prove so that negligence is
determined. These are a breach, assessment of duty, actual cause, damages, and proximate
cause.
Donoghue v Stevenson [1932] is a good example that shows how negligence manifests
itself.1 In this case, principles such as the duty of care as well as the principle of fault. The
facts state that Donoghue found a decomposing snail in her beer bottle after pouring the
remaining content on her ice cream. This shocked her and she suffered gastroenteritis and
nervous shock. As a result, she sued the manufacturer for damages. Grant v Australian
Knitting Mills (AKR) (1936) followed the precedent set by Donoghue V Stevenson hence
developing negligence law.2 This was where the duty of care must be depicted by employees
1 Donoghue v Stevenson [1932] AC 532
2 Grant v Australian Knitting Mills [1935] UKPC 62, [1936] AC 85; [1935] UKPCHCA 1, (1935) 54 CLR 49
(21 October 1935), Privy Council (on appeal from Australia).

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Tort Law
and employers equally. Breach of duty is then determined after establishing that one has a
duty of care towards the plaintiff. This is when it is decided whether the duty was breached
or not. A plaintiff should also show that he or she sustained serious injuries, harm or lost
property from breaching duty of care. This ultimately leads to the payment of damages to
the plaintiff3.
In the case scenario at hand, Tom has a duty of care which dictates that as an engineer, all
rides undergo safety checks before they are used by the public.4 His actions lead to safety or
harm. To start with, factual causation has to be proven, in this case, Tom performed the
checks hurriedly making the seat not secure and in the end, Carly falls out of the seat and
sustains serious injuries. If it was not for Toms’ state of being in a hurry, Carly could not
have fallen. In that regard, all elements have been proven. Tom has the duty of care to
others such as Carry, he breaches his duty by performing safety checks hurriedly, his act
leads to the fall of Carry making her sustain injuries and causation is established by a
foreseeable consequence because of his acts.
In addition Tom is liable for the trauma that the accident has caused on Eve. She was
terrified such that she now has Post Traumatic Stress Disorder.5 As such, she can sue for
damages since she is not able to go to work again after the incident. The same applies to
Pablo who has a fear for heights. Pablo can sue Tom for damages because Tom had a duty
of care and he failed to act as desired6.
3 Wallace v Kam [2013] HCA 19, High Court (Australia).
4 Pandey, R. (2017). Is the Commissioner immune from the tort of negligence?. Taxation in
Australia, 51(9), 494.
5 Dillon v. Legg, 68 Cal. 2d 728 (1968) and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916
(1980). 6 Kavanagh v Akhtar [1998] NSWSC 779, Supreme Court (NSW, Australia).

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It is therefore prudent for Tom to pay for the injuries sustained. This can only happen if
Carry sues him. In some instances, the company can also be sued because of vicarious
liability. Fantastic World may be vicariously liable for Tom’s actions especially if it is
established that he is insured by the company.
References

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Donoghue v Stevenson [1932] AC 532
Grant v Australian Knitting Mills [1935] UKPC 62, [1936] AC 85; [1935] UKPCHCA 1, (1935) 54
CLR 49 (21 October 1935), Privy Council (on appeal from Australia).
Wallace v Kam [2013] HCA 19, High Court (Australia).
Pandey, R. (2017). Is the Commissioner immune from the tort of negligence?. Taxation in
Australia, 51(9), 494.
Dillon v. Legg, 68 Cal. 2d 728 (1968) and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d
916 (1980).