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Law Of Tort Essay

1657 words - 7 pages

Introduction
This assignment will establish the elements needed for a person to be held liable in Tortious Law. Once the elements have been established they shall then be used to determine if the individuals in each scenario would be held liable.
Tort Law
Tort Law in layman’s terms is a civil wrong. It does not necessarily need to be an illegal action but an action that has consequently caused harm or suffering to another. The main outcome for a person claiming they have been a victim of a tortious act is compensation. For a successful tort claim the three main elements need to be present and their needs to be a standard of proof; a balance of probabilities.
The Necessary Elements
As ...view middle of the document...

The court had to first establish, whether the standard of care applied to a competent driver must be the same as that applied to a learner driver, before they could establish whether a duty of care was owed.
Foreseeability (Bolton v Stone [1951] AC 850) and proximity (Bourhill v Young [1943] AC 92.) are both significant to determine a duty of care.
Breach of Duty
Breach of duty identifies whether or not the tortfeasor has breached the duty by not reaching the standard of care required. This was defined in Blyth v Proprietors of the Birmingham Waterworks [1856] 11 Exch 781. Alderson held
‘the omission to do something which a reasonable man guided upon those considerations….would do’
When trying to determine whether or not the tortfeasor has breached the duty of care owed they ask not if it was foreseen by the tortfeasor but would it have been forseseen by the reasonable man? The reasonable man being identified by Greer;
“The person concerned is sometimes described as ‘the man on the street’ or ‘the man on the Clapham omnibus’, or ……the man who takes the magazines at home and in the evening pushes the lawnmover in his shirt sleeves.”
Hall v Brooklands Auto-Racing Club [1933] 1 KB 205
There are exceptions to the rule of the ‘reasonable man’. In some circumstances a different standard of care is assigned such as if the tortfeasor was to have a special skill, profession or expert field. Then the reasonable man would be someone deemed to have the same skill, profession or expertise as the tortfeasor.
A lead case in the standard of care of required of an expert is that of the Bolam Test and is defined by Mcnair J
“A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion….A doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view”
Bolam v Friern Hospital Management Committee [1957] 1 WLR
Although the test was adjusted in Bolitho v City & Hackney HA [1997] 4 All ER 771: HL. In reference to the Bolam test it became that when the court was faced with two conflicting opinions from experts that they could reject an opinion if it was not logically defensible.
Damage caused by Breach of Duty.Causation.
The final element needed for a successful case is that of causation. The claimant must prove that the damage, harm or suffering was caused by the breach of the duty of care held by the tortfeasor. A test used to determine this is the ‘but for’ test. As held by Lord Denning
‘If the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage.’
Cork v Kirby MacLean Ltd [1952] 2 ALL ER 402
Meaning that ‘but for’ the tortfeasors breach of duty would the damage, harm or suffering still have occurred.
When considering causation...

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