CASE STUDY

Case Study

Case Study

Introduction

Derived from Latin, the concept and principles of tort have developed quite steadily through the years so that, from the late 1950's onwards, incentives and deterrence's have been emphasized with tort's aim identified as being the efficient distribution of risk as part of what is often described as the 'law and economics movement'. But then it is also important to appreciate that the law of tort has since come to effectively refer to a body of law that looks to provide remedies for civil wrongs that are not derived from contractual duties in the intervening period. As a result, this effectively means that someone who is legally injured may use the principles involved with tort to recover damages from someone who is 'liable' for those injuries that is said to arise from a breach of a duty that has been primarily fixed by law that is held towards others generally, with a breach that is considered to be redressable through the award of damages (Turner 2003).

Therefore, with this in mind, the concept of tort law effectively defines what is considered a legal injury, and establishes the circumstances whereby an individual may be held liable for another's injury resulting from either intentional acts or accidents. Consequently, on this basis, in England, following the traits first established within the precepts of Roman Law many centuries ago, this legal system domestically has long been based on nominate torts including assault and battery that stands in sharp contrast to the more 'open' Continental approach to tortuous liability.

Negligence and Tort Law

In general terms, negligence is "the failure to use ordinary care" through either an act or omission. That is, negligence occurs when:

somebody does not exercise the amount of care that a reasonably careful person would use under the circumstances; or

somebody does something that a reasonably careful person would not do under the circumstances.

Negligence is often claimed in personal injury lawsuits. For example, a personal injury lawsuit arising out of an automobile accident case or premises liability action is frequently based on the theory that the defendant was negligent. Please note that negligence law varies between jurisdictions, sometimes significantly, and you should check with a local legal professional if you wish to know the specific negligence laws of your jurisdiction.

Proximate Cause

Proximate cause exists where the plaintiff is injured as the result of negligent conduct, and plaintiff's injury must have been a natural and probable result of the negligent conduct. In order for a defendant to be liable, the plaintiff must establish both negligence and proximate cause.

The law speaks of the defendant's conduct as being "a proximate cause" of an accident, as opposed to "the proximate cause" (Samuel 2005). Many accidents have more than one proximate cause. It is typically not necessary for liability that the defendant's negligence be either the only proximate cause of an injury, or the last proximate cause. A defendant may be liable even where an injury has multiple proximate causes, and whether those causes occur at the ...