Tort Law: Elements, Circumstances, and Significance

Running Head: BUSINESS AND CORPORATION LAW 0
Student’s Name
8/1/2018

Tort Law
1
Assignment on Tort Law
In general, some relationships do exist in the society where a person owns a liability of care
towards the other person. These relationships are those where fiduciary factors exist in the nature
of a relationship, for instance, Doctor-Patients, Solicitors- Clients, and so on. Wherever a person
fails to discharge such duty of care, and due to this reason other parties suffer from a loss then
such a situation termed as “Tort.” Here the meaning of tort is “Civil Wrong1.” Negligence is an
important kind of tort. When due to negligence or any other kind of tort of a person, another
party comes out with loss, then, the suffered party can ask for the damages Under Tort Law.
Some of the elements are mentioned under Tort Law that is necessary to exist in a case tort.
These factors are as follow:
1. The existence of Duty of care
2. Breach of such duty
3. Defendant’s act must be the actual cause of harm/loss
4. Cause of loss should be proximate
5. The plaintiff must be suffered from an identified harm.
If all the aforesaid conditions get satisfied then a case of tort will be proved.
It was seen in the case of Read v Lyons Co Ltd2 that while considering the cases of
negligence/tort, Judges does not consider the condition and characteristic of the defendant of the
case. It means the court considers the existence of the aforementioned requirements. Further, it
has also been noted in the said case that the court looks after the circumstance of the case in
which a loss is accrued to the plaintiff.
As mentioned earlier that loss should be directly related to the negligence act of the defendant.
This is to mention that the cases where the reason of loss is not the negligence of the defendant,
the court does consider the case as “Case of Negligence.” Here, this is significant to know that
for reasons, the court does not consider the characteristics of the individual defendant.
Negligence is a part of Tort Law that comes under Common Law. Common Law works on the
basis of natural justice and legal precedents. In every case, providing justice to the victim party is
the main target of judges, this is the reason that they do not consider the situation of an
individual defendant. Characteristics of an individual can be anything. He/she can be poor or
unaware of the law. However, this will not be fair to consider the characteristics of them. The
lead task of judges is to provide the justice to the victim party; hence, the need is to focus on the
1 Margaret Kerr and JoAnn Kurtz, Make it Legal: What Every Canadian Entrepreneur Needs to Know About the
Law (John Wiley & Sons 2012), 281.
2 [1947] AC 156

Tort Law
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condition of the plaintiff rather than the defendant. This is also expected that if once courts will
start considering situations of individual defendants, then all the defendants will start making
excuses and no one will let the judges held them liable.
However, this is not that, a judge never considers the situation of a defendant. In many of the
cases, where the defendant himself/herself is not able to perform his/her duty of care due to the
physical conditions, the courts consider the issues in such cases. The reason of the same is that
an ill person cannot be held liable to perform the duty of care as similar to a healthy person in the
cases where the said duty involves the personal assistance of defendant. Mostly, courts consider
the physical capacity of the defendant but not the mental one. A person cannot be held free from
the standard of care just because of the reason that the same is mentally unstable or is lacking in
memory, judgment, or emotional stability. This cannot be stated that courts never consider the
personal characteristics of the individual defendant, but it does not happen in general.
It was held in the case of Blyth V Birmingham Waterworks3 that negligence is an omission of the
duty that a reasonable person was expected to fulfill. In the interpretation of this, it can be stated
that the defendant must be a reasonable person. If a person is not able to take reasonable
decisions and steps then, the same cannot be held liable for Negligence or another kind of tort
under Tort Law. Here the meaning of reasonable person is a person that is expected to be a
skilled, mature, competent, and experienced one. Further as per the decision of the case of
wilsher V Essex Area Health Authority4 inexperience of a defendant (where defendant is a
professional) cannot reduce the standard of care5. Providing justice to the weaker party to the
case is the lead reason for not considering the defendant’s situation is a particular case. If the
court would start considering defendant’s characteristics then probably no defendant will be left
there. Hence, court although listen to both the parties yet not consider characteristics of the
defendant.
As discussed above that the court does not consider characteristics of the individual defendant,
this is also significant to discuss that courts take into account and consider the circumstances of
the case in which loss occurred. The decision in every case depends on it is circumstances. As
tort is a situation where a person fails to perform the standard of care, therefore the reason for
that it has happen needs to review. Such reasons are a part of the circumstances of the case. In
many of the cases, it has observed that the defendant failed due to the situation of the moment.
Sometimes, at a particular time, it does not remain possible for the defendant to perform the duty
of care, and then in such cases, the court needs to know the exact circumstances. Contributory
negligence is an important aspect under Tort Law. This is a situation where along with the
defendant, the claimant also fails to take care of him/her or do an act that is proved as an
additional reason for the loss accrued6. In case of contributory negligence, damages are reduced
up to a certain level and the plaintiff can only claim for the partial damages. The defendant can
3 (1856) 11 Exch
4 [1987] QB 730
5 Kirsty Horsey and Erika Rackley, Tort Law (Oxford university Press 2015), 222.