Duty of Care and Negligence in Tort Law. Sample Essay

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Tort Law - Duty of Care and Negligence

At the surface of the facts surrounding tort law, the disagreement evolving around it, rear up with respectto the specific labels which are utilized in defining the basic aspects. It is a second nature of lawyersand specifically law scholars to examine the doctrines of liability on a spectrum which ranges from intentionalacts of tort though the foggy boundary jurisdiction of recklessness or carelessness, continues with acts ofnegligence and comes to a halt with absolute liability and strict liability. In negligence tort, the doctrinalcontent and definitions are extremely controversial. According to its formal definition, negligence may beapplied on conduct and risk as illustrated by the case, Heaven v. Pender, which rests on thecharter of dutyas derived from the relations between the parties. Nonetheless there are other definitions, as given by theculpability spectrum, where the judgment that an individual was found guilty of an extremely slight act ofnegligence is indicated in the doctrine borrowed from the ancient Roman law. Acts of negligence often resultin damages, which range depending on its impact. The most challenging damage is the psychiatric damage, whichthe injury to an individual’s state of mind, scientifically, a nervous shock. Psychiatric damage emerging outof a physical injury to an individual is unproblematic and easily recoverable. However, psychiatric damagesinconsequential to physical injury can also be a subject of negligent action including the duty of care betweenthe Def; the victim and the PI; the causer. In this case, the damage may be purely psychological such asdepression, or post-traumatic stress, or may be physical such as heart attack.

With the case involving the fire which raged down Dwain’s knitting needle factory, there is a great challenge ofdetermining whether thereliability to pay damages resulting from the negligently inflicted psychological injuries.With the claim made by Annabel, Bilal, Colin, and Eric’s estate in suing Dwain, it is clear that there is noliability to pay the damages. As indicated in the case ofMcLoughlin v. O'Brien, a cause of action cannot beestablished in the side of Dwain. The ingenuity of the argumentthat Dwain negligently caused the fire shouldbe admired. The statement of claim fails to establish a cause of action. There have been significant developmentsin the cases involving liability for psychological injury which to a greater extent may form the damage’s head.For instance, Lord Wilberforce in deciding the case, McLoughlin v. O'Brien, recognizes that a claim may be madefor psychiatric shock even though there is no immediate aspect of causation or if there exists a fear of directpersonal injury to the Def, who in the case are Annabel, Bilal, Colin, and Eric’s estate. However, Lord Wilberforceaccepts that there are various limitations on the class of persons who are not injured but may claim damages.For example, when individuals are not in a position to hear or see the consequences of the event resulting ininjury to some other person (Horsey&Rackley 2013).

These restrictions were clearly spelled out in the case, Alcock&ors v Chief Constable of South Yorkshire(Bar, Blackie, Clive, Swann & Study Group on a European Civil Code 2009). It was accepted that an individualwho is claiming damages though not directly involved in the disastrous event should have heard or seen the ventor come across it in the immediate consequences as per Lord Oliver and Lord Ackner. In the claims made by theDefs, all claims reasonably have an immediate involvement with the consequences of the fire berth. However, inthe case, Frost [1999] 2 AC 455, the reasons behind distinction of psychological and physical harm were analyzedby Lord Steynillustrating why the law has ensued cautiously in recognizing the genuine claims for psychologicalharm. For example, it is difficult to differentiate between psychiatric injury and severe grief to broaden therange of recognized claims. This might not only aggravateadditional claims but also levy a uneven liability onthe defendants in a case where personal injury to the Defs could not be rationally have been foreseen.

Nonetheless, there is no liability to pay damage as claimed by Annabel, Bilal, Colin, and Eric’s estate, majorlybecause a cause of action could not be established with the defendant. It cannot be established that Dwain actednegligently. There is substantial or circumstantial evidence which can be relied on in determining negligent actwith Dwain. Although Dwain owns the form, he is not directly involved in the installation or the repair of theelectric wiring system. Therefore, he did not owe any duty to the plaintiff. Although, he owes his employees theduty of care, this duty is limited only to them alone. Lastly in the case of Eric’s estate no liability couldexist in common law for the psychological injury to individual who were informed of incident, and did notessentiallyrecognize the event or its consequence, thus the damages claims could be inconsistent and could notstand in determining the damages. The need for anabrupt shock or undeviating perception of an event or itsconsequence indicates that the presence of an owed duty requires excessively reasonable foreseeability ofpsychological injury.

On the other hand the claims made by Dwain seeking damages for the negligent inflicted psychological injuryagainst the contractor can be justified. As seen in the case, Attia v British Gas Corporation, where the Attiahiredthe defendant to set upa central heating system in her home. Upon her returning from work she found her house infire and by the time the fire brigade arrived, the fire could not be put out (Abbott, Pendlebury&Wardman 2007).Although the defendant admitted the act of negligence and went on to pay the damages, British Gas Corporationdeclined to pay the damages to the psychological injury suffered by Attia. It disputed the claims, arguing thatit was rationally unforeseeable, thus damages could not be recovered. However, it was ruled that the incident wasreasonably foreseeable. Similarly with the claims made by Dwain, the incident of fire was foreseeable as thecontractor had poorly installed the electric wiring system. The psychological injury to Dwain was a result ofnegligent actions of the contractor which, when judged by the principle of reason ought to have been foreseen.Additionally, it should be considered that in determining the scope of liability in negligence, it is essentialto recognize the concerns which was satisfactory to appealto any legal protection.

References

Abbott, K., Pendlebury, N., &Wardman, K. 2007,Business law, Thomson, London.

Bar, C. ., Blackie, J., Clive, E. M., Swann, S., & Study Group on a European Civil Code 2009,Non-contractualliability arising out of damage caused to another: (PEL Liab. Dam.), Sellier, Munich

Horsey, K., &Rackley, E. 2013,Tort law, Oxford University Press, Oxford, United Kingdom.