A tort is committed against an individual or legal entity or company. When a person commits a tort they become liable for damages, damages are compensations usually paid in monetary terms by a person who commits a tort to a the injured person or party who have suffered harm or injury at the expense of an individual’s act or omission. The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor. ELEMENTS OF A TORT Tort is a remarkably wide-ranging subject and maybe the most difficult of all legal areas. The question is how we establish liability in in tort.
Introduction The problem question relates the legal principle concerning ‘Trespass to the Person’ the tort of trespass to the person protects the right to personal integrity and the Writ of trespass is that the act had to be direct and physical Scott v. Shepherd (1773). This area of trespass is broken down into three issues: Assault, battery and False imprisonment. In order to answer the problem question it would have to be ascertained as to which trespass has occurred and apply it to any relevant statue and case law where appropriate. Definition Trespass to the person is defined as a physical interference with his or her person. Explanation Trespass to the person takes three forms: assault, battery and false imprisonment and they carry the same characteristics as ‘Trespass’ in which they must be committed intentionally, cause direct harm and are actionable per se without proof of damage.
These can include medical bills, property damage cost of repair, and even loss of pay. Punitive damages are not intended to compensate the injured for losses, but as a punishment for the wrong doer and to deter them from committing this act again, or prevent the same negligence in the future. The four elements of a negligence action that must exist for a plaintiff to win a negligence action are duty, breach of duty, causation, and damages/injury. The plaintiff must prove all of these elements in order to be successful in a negligence claim. The first element, Duty, can be looked at almost like the Golden Rule.
See also the first instance approach of Hughes J in Millward v Oxfordshire County Council [2004] EWHC 455 (QB). A primary difficulty in establishing liability is proving that the breach of duty caused the harm to the Claimant. This is a recurring problem in cases where the breach consists of a failure to provide adequate information or training. As assaults tend to occur quickly and unexpectedly it is difficult to prove that a suitably informed and trained Claimant would not have been assaulted anyway. Longmore LJ in Vaile quoted Toulson LJ at paragraph 28 of the case of Drake v Harbour [2008] ALL ER (D) 283: “Where a Claimant proves both a Defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the Claimant is unable to prove positively the precise mechanism.” In other words, common sense can be applied to the facts of a case and a Claimant can
However, the House of Lords decided to create a new principle of law that stated everyone has a duty of care to their neighbour, and this abled Donoghue to successfully sue the manufacturer for the damages.” In order to prove negligence and claim damages, the plaintiff has to prove a number of elements to the court. These are: * the defendant owed them a duty of care, * the defendant breached that duty of care, and * they suffered loss or damage as a direct consequence of the breach. As we saw earlier, the first element of the duty of care was created in the Donoghue case. The House of Lords stated that every person owes duty of care to their neighbour. The Lords went on to explain that ‘neighbour’ actually means ‘person so closely and directly
Generally, the Actus Reus must be voluntary and deliberate and if involuntary, he is not at fault. For example, actions carried by reflex or through a spasm are involuntary and therefore the defendant is not at fault. On the other hand, failing to act when there is a duty to do so can lead to fault. The Prosecution must prove that there is a link between the defendant’s act and the end result in order to prove that he is a fault. Factual Causation and the De minimus Rule uses the ‘But For test’.
ROLE OF THE TRIAL JUDGE Is the Case an Appropriate One for Punitive Damages? It is the responsibility of the trial judge, in the first instance, to determine whether the case is appropriate for punitive damages, i.e. whether the question of punitive damages will be submitted to the jury.' The main focus of that determination is the nature of the defendant's conduct. The trial judge looks for evidence that the defendant acted intentionally, outrageously, recklessly or with conscious disregard for the rights of others.
Remember, the occurrence in question is the damage to the bull, not the wreck between Kelly Hereford and Mrs. Amrit. To win, the plantiff must prove two things 1) that Mrs. Amrit was negligent and 2) that such negligence proximately caused damage to the bull. The Court will instruct you that the Plaintiff bears the burden of proving these issues by a preponderance of the evidence. In the simplest terms, that means proving it is more likely than not that Mrs. Amrit was both negligent and damaged the bull You will recall from the Opening that we told you three small but key details would decide the case: (1) a radio call to the Sheriff, (2) smoke from the airbags, and (3) the skid marks. So what do they tell us?
The question was that “who then in law is my neighbour? The answer was that anyone who is closely and directly affected by your act, to reasonably have them in contemplation as being affected when you are directed to a act. Duty of care This was brought to existence by Lord Bridge in Caparon Industries v Dickman (1990) in this case: The test in this case was that it must be clarified whether the loss was foreseeable i.e. if it could have been prevented as in case of Donoghue v Stevenson (1932) in the neighbour principle. If the loss was foreseeable, whether there was a sufficient relationship of proximity between the parties should be
VICARIOUS LIABILITY The tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as Parent and Child, Employer and Employee. Or Owner of vehicle and Driver), to exercise such care as a reasonably prudent person would use under similar circumstances. Vicarious Liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently. It is also referred to as imputed Negligence. Legal relationships that can lead to imputed negligence include the relationship between Parent and Child, Husband and Wife, Owner of a vehicle and Driver, and Employer and Employee.