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Tort Law, Essay Example

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Introduction

In criminal law jurisdictions, tort laws occur as civil wrong and they deal with instances where an individual acts or behaves unfairly. This causes another person to suffer harm or losses. Though torts do not occur as legal acts, they lead to harm. Most legal jurisdictions allow the harmed person to recover their losses. Tort laws differ from criminal laws, which address situations where a person’s actions lead to harm or losses to the society. Any person claiming to have suffered harm or losses after litigating can claim tort. Torts laws also differ from equity, where the petitioner complains for a violation of right. Delicts occur as equivalents of torts. In addition, torts can be considered as personal injury or civil action.

Identify Potential Tort Risks Addressed In The Video. Classify The Type of Each of These Torts, For example Negligence And Strict Liability.

People who have suffered these acts can receive compensation for damages. These compensations are usually in monetary form. Tort laws crucially define legal injury and determine the eligibility of an individual to receive compensation for the injury. Legal injuries include physical injuries and other injuries such as reputational, emotional and economic injuries (Buckley, & Okrent, 2004). They also include violations of property, privacy and constitutional rights. Therefore, tort laws comprise auto accidents, defamation, false imprisonment and product liability. Usually, negligence occurs as a prominent tort liability. Tort laws allow compensation in case the injured person can prove that the person causing the injury acted negligently. This person should show that the other person acted without reasonable care to avoid injuring other people. Tort laws recognize intentional torts, where an individual acted intentionally to hurt others. Quasi-tort or strict liability allows recovery following certain circumstances, which do not require proof of negligence.

Potential tort risks in this case can be classified as strict liabilities and negligence. For instance, the products used this case did not achieve the standards specified in the express warranty. The people at the firm used these products for more than a year and they read the manuals. However, they could figure out the manner of using the product. Additionally, the products led to injury to the user. One of the users cut his finger as he tried to operate the equipment (Edwards, Edwards, & Wells, 2009).

Negligence occurs as a failure to exercise care in different circumstances. This area of tort leads to harm and injury because of carelessness, which differs from intentionally harm. Negligence depends on the presence of breaking the duty of care of a person. Negligence requires elements for determining liability; include the plaintiff and the breach or dereliction. In tort law, strict liability exists as a rule that specifies the liabilities of a person for loss and damages caused by their actions (Edwards, Edwards, & Wells, 2009). Strict liability has prominence in law especially in corporate and criminal laws, in addition to product liability. In tort laws, strict liability occurs as an imposition of liability without identifying fault such as tortuous intent and negligence. The claiming party only needs to prove that tort occurred and the defendant was responsible for the tort.  

Identify A Tort Violation From The Video. Then Use The 7-Step Process As Defined In The Harb Article To Apply The Risk Management Process To Mitigate The Business Risk Associated With That Violation.

In this case, a tort violation occurred because of breach of warranty. In addition, one of the operators of the equipment cut his finger as he tried to operate the equipment. Therefore, as a manager, I will use the seven-step process of risk management to mitigate the business risk associated with the violation. Enterprise risk management occurs as an approach in addressing and assessing risks from all sources that threaten the achievements of organizational strategies. The first element in successful enterprise risk management involves management commitment. This requires the establishment, development and maintenance of risk management frameworks. This promotes and reinforces the benefits of risk management to many organizations. The second element involves consultation and communication (Buckley, & Okrent, 2004). The management should initialize communication, which is a crucial function in the ERM framework. The company has the responsibility of communicating and reinforcing the roles of the ERM framework. The third element involves procedures and policies. The company should develop concise, easy and clear procedures and policies that people can comprehend easily. This requires a review of the risk management procedures, stratagems and measures for their appropriateness. The management should also institute processes and systems that facilitate an application of the of the ERM framework.

The fourth element involves education and training, which occurs as investing in its workers and people. The company should conduct training in areas that facilitate risk identification. This requires a review of the profiles and provision of feedback to risk owners. Additionally, the company should develop an effective and efficient framework with well-documented plans, policies and toolkits. This should align the main activities of the company and minimize duplication of function. Well-aligned activities help in the creation of interdependency in ERM. Thereafter, the company should practice or apply risk management. This will require regular risk assessment and facilitation of risk workshops. This also requires coaching management and support partners in addition to reviewing management of crucial risks (Buckley, & Okrent, 2004). The final process in risk management involves ongoing monitoring and review of risk management. This involves reviewing all the components of the ERM framework, which requires assurance of ERM processes and systems. This also requires assurance of monitoring and reporting of risks and independent testing of controls.

Professor Of Law Nancy Kubasek States That It Appears As If A Breach Of Warranty Occurred. As A Business Manager, What Criterion Would You Consider In Determining If This Is An Appropriate Situation To Involve Legal Counsel?

In case individuals are harmed by using unsafe products, they can use the Cause of Action against the owners of the product. In addition, they can also use the Cause of Action against people who manufactured, designed and sold the product. Liability litigation can be instituted in this case in order to facilitate consumer protection. In this case, the warranty was broken because the goods did not meet the specifications in the warranty. The goods did not have the expected standards and conditions, which could harm the user. In this case, I would consider risk management in determining the appropriateness of the situation (Harb, 2008). In order to manage the situation, it is essential to contract a legal counsel to take care of any legal proceedings from this situation. The owners of the product misrepresented the product’s quality, which resulted in a breach of warranty. The legal jurisdiction has provisions for express warranties, which guarantees compensation in case a seller makes false impressions about a product.

Tort laws occur as civil wrong laws that deal with unfair actions or behaviors towards individuals. Tort laws deal with instances where an individual suffers losses or harm. Potential tort risks in this case occurred as negligence and strict liability. The products used in this case did not meet the specified standards as outlined in the express warranty. The products led to injury and harm to the users, hence these individuals could claim tort. Enterprise risk management occurs as an approach in addressing and assessing risks from all sources that threaten the achievements of organizational strategies.

  References

Buckley, W. R., & Okrent, C. J. (2004). Torts and personal injury law . Clifton Park, NY: Thomson/Delmar Learning.

Edwards, L. L., Edwards, J. S., & Wells, P. K. (2009). Tort Law For Legal Assistants . Clifton Park, NY: Delmar Cengage Learning.

Harb, T. (2008). 7 Essential Elements of ERM and the Role of Internal Audit. Institute of Internal Auditors. NSW Chapter Members Meeting. Page 1-8.

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QUB LAW SOCIETY'S TWENTIETH EDITION

V  E  R  D  I  C T

First Class Tort Law 2042 Essay (Awarded an 82)

This exam was submitted by Sarah Hair as part of The Verdict's Law Review series. Check out our other example essays here .

“The term ‘policy’ is amorphous, and that is why the parameters of negligence are so unclear”. Do you agree with this statement?

Policy has taken centre-stage in numerous noteworthy judgments steering the course of negligence, and thus has been oft exposed to academic scrutiny. Policy reasoning may also be less overt, given its integral nature in elements of liability, operating subconsciously within judicial intuition and discretion. This essay will first analyse whether the term policy is amorphous by analysing its diverse application throughout negligence, before turning to whether it has indeed created a lack of clarity in the parameters of negligence.

I. AMORPHOUSNESS IN POLICY REASONING?

Preliminarily, it is necessary to consider how ‘policy’ is defined, or what it refers to – and immediately, academics diverge. Hylton (2016) suggests policy has two main sources, economic reasoning and moral reasoning, and provides either a positive or normative theory of law; the former explaining the law as it is, and the latter describing an ideal legal system. Conversely, Dworkin (1977) distinguishes ‘policy’ from ‘principle’, suggesting the latter concerns standards of morality, fairness and justice, whereas policy refers to collective goals typically economic or political in nature. For the practical purposes of this essay, policy will be regarded a ‘catch-all’ phrase describing considerations that are non-legal, i.e. not based on recognised legal principle or precedent (Conaghan and Mansell, 1999).

Policy rears its enigmatic head in numerous areas of negligence. Fundamentally, imposition of a duty of care incorporates policy elements, and has done so throughout its development. Lord Wilberforce's two-stage test in Anns v Merton London Borough Council (1978) considered firstly whether proximity and reasonable foreseeability existed between the alleged wrongdoer and plaintiff; and secondly, whether policy reasons could negate or limit liability – a caveat to batten the floodgates. The modern three-stage test for duty of care, per Caparo Industries v Dickman (1990), retains this policy consideration in the third criterion requiring it be ‘fair, just reasonable’ to impose a duty. Under this heading, courts have considered policy facets including loss allocation (who can afford to bear loss), impact in terms of deterrence and standards of practice, and whether imposing liability will incur an influx of cases with subsequent impact on courts and insurance costs.

Hill v Chief Constable of West Yorkshire (1989) illustrates significant policy restriction on duty of care: the House of Lords warned imposition of liability could cause police functions to be carried out in a detrimentally defensive frame of mind. McIvor (2010) notes following this decision the standard judicial response to allegations of police negligence has been to brandish this policy card in denying duty of care. In Osman v United Kingdom (1998), such blanket immunity as afforded by Hill was deemed incompatible with ECHR Art 6, curtailing the extensivity of this policy consideration. Policy concerns also underly imposition of control mechanisms on secondary victims, in governing who can claim for psychiatric injury; in Page v Smith (1996) Lord Lloyd stated that absence of control:

…would open the door too wide, and encourage bogus claims…It is for this reason that the courts have, as a matter of policy, rightly insisted on a number of control mechanisms. Otherwise, a negligent defendant might find himself being made liable to all the world.

Policy is double-edged, however, in that it may also be used to justify widening of liability. Concerning causation, policy is central to departure from the strict ‘but for’ test in cases where tortious creation of ‘material increase in risk’ is equated to a material contribution to the harm suffered. Fairchild v Glenhaven Funeral Services (2003) asserts in such cases concerning mesothelioma there exists strong policy argument in favour of compensating victims of grave harm, and the perceived injustice of imposing liability on the employer is outweighed by the injustice of denying a victim redress.

Objectivity in standard of care as per Nettleship v Weston (1971) also contains underlying policy justification: Lord Denning held that ‘morally the learner driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her’. This rationale might be paralleled with the ‘deep pockets’ theory behind employers’ vicarious liability: that the employer is presumably in a better financial position to remediate damage, an idea grown from public policy and ‘social convenience’ ( ICI v Shatwell (1965)).

Furthermore, the standard of care asks what was objectively reasonable in the circumstances , which includes social value of the activity. Thus per Tomlinson v Congleton BC (2003), what amounts to reasonable care depends not only on likelihood or seriousness of injury, but also the social value of the activity giving rise to risk, and cost of preventative measures. Correspondingly, the Compensation Act 2015 s 1 states that courts, in determining whether adequate preventative steps or precautions were taken, must consider whether requiring said precautions would prevent or discourage a desirable activity.

The foregoing illustrations are the furthest from exhaustive. Given this multiplicity of policy utilisation and versatility of impact, ‘policy’ is arguably intrinsically amorphous. It appears to shapeshift as factual matrices and ideas of justice require. Lord Nicholls in Fairchild lamented the scope of liability as ‘ afflicted with linguistic ambiguity ’; a finding Lord Neuberger (2017) suggests is unsurprising ‘as almost all aspects of tort law, above all negligence, are based on policy’.

II. LACK OF CLARITY IN THE PARAMETERS OF NEGLIGENCE?

It hardly need be stated that application of the parameters of negligence is not an exact science. The contentious issue is whether this constitutes an injurious lack of clarity and certainty. In the words of Lord Bingham (2010):

The law must be accessible and so far as possible intelligible, clear and predictable…Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion.

Correspondingly, Lord Brown in Sienkiewicz v Grief (2011) cautions that circumvention of rocks of uncertainty has the capacity to drastically increase scope for what hitherto have been rejected as purely speculative compensation claims. Nonetheless, Oliphant (2013) argues insistence on unyielding certainty is potentially counter-productive to achieving such, in that rigid rules necessitate exceptions and qualifications which complexify the law. He argues exercise of judgement is inherent in the judicial role; appellant courts should set parameters for flexible assessment of relevant factors, rather than mechanical rules. Clarity is to be found in striving after certainty that is genuine and consistent with broad principles, rather than certainty that is ‘patchwork’ and ‘spurious’ (Cardozo, 1924).

Notwithstanding, Oliphant deems the extent of judicial reliance on policy excessive, suggesting it contributes to degeneration of law into a collection of fact-specific rules, disregarding principle or coherence. Linde (1994) likewise condemns policy for inviting public politics into courts and torts, concluding ‘unless a court can attribute policy to a politically accountable source, it must resolve novel issues of liability within a matrix of statutes and tort principles’, to preserve separation between judiciary and legislature. According to Stevens (2007), judges lack the political jurisdiction and technical competence to make the economic and social assessments required by policy questions.

However, considering the ‘quasi-legislative’ function of caselaw and its entrenchment, the practicability of such arguments is dubious, requiring a questionable line to be drawn between matters suitable for judicial deliberation and those deemed ‘extrajudicial’. It is difficult to even differentiate where policy ends and principle starts. Furthermore, it is something of an artificial distinction to deem judges competent arbitrators of morality and justice, but not policy. Lord Neuberger (2017) reasons:

[P]olicy may often be less reliable than a principle at indicating a specific outcome in a specific case. But policy may often be more reliable in the sense that it is less prone to founder on exceptions or turn out to be unsound. And, since principle is based on policy, there can be said to be less of a risk of losing the thread if one applies principle rather than policy.

Finally, it is a serious oversimplification to suggest lack of defined parameters arises purely from policy’s amorphousness. Perhaps due to the aforementioned intrinsic need for flexibility, holes might be poked in the clarity of practically every tool governing liability in negligence. Teff (1988) highlights the concern proximity is ‘no more than a rhetorical device which conceals more than it reveals’, noting Lord Oliver has interchangeably dubbed it a label for ‘reasonableness, ‘pragmatism’, and ‘policy’. Porat and Stein (2001) argue philosophically complex factual matrices themselves are generative of uncertainty, e.g. the ‘two hunters case’ ( Summers v Tice (1948)).

Whilst academics disagree on the nature of policy and its legitimacy as a tool in judicial reasoning, a common ground appears to be that its immoderation may generate uncertainty and lack of clarity. Whilst public policy is a very unruly horse, ‘with a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles’ ( Richardson v Mellish (1824); Enderby Town FC v The Football Association (1971). The multipurpose nature of policy utilisation in negligence has permitted elastic evolution of its rules. Necessary flexibility inevitably invokes a degree of ambiguity; a balance is to be struck between the competing demands of pragmatism and purism.

Bibliography

Legislation & International Law

Compensation Act 2015

European Convention on Human Rights

Anns v Merton London Borough Council [1978] AC 728

Caparo Industries plc v Dickman [1990] 2 AC 605

Enderby Town Footbal Club v The Football Association [1971] Ch 591

Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32

Hill v Chief Constable of West Yorkshire [1989] AC 53

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656

Nettleship v Weston [1971] EWCA Civ 6

Osman v UK App no 87/1997/871/1083 (ECtHR, 28 October 1998)

Page v Smith [1996] AC 155

Richardson v Mellish (1824) 2 Bing 229

Sienkiewicz v Grief [2011] UKSC 10

Summers v Tice 199 P.2d 1 (Cal. 1948)

Tomlinson v Congleton Borough Council [2004] 1 AC 46

Bingham T, The Rule of Law (Allen Lane 2010)

C McIvor ‘Getting Defensive about Police Negligence: The Hill Principle, the Human Rights Act 1998 and the House of Lords’ (2010) 69(1) CLJ 133

Cardozo BN, The Growth of the Law (New Haven, Yale University Press 1924)

Conaghan J and Mansell W, The Wrongs of Tort (Pluto Press 1999)

Dworkin R, Taking Rights Seriously (Duckworth 1977)

Hylton K, Tort Law: A Modern Perspective (Cambridge University Press 2016)

Linde H, ‘Courts and Torts: “Public Policy” Without Public Politics?’ (1994) 28(3) Val. U. L. Rev. 821

Neuberger D, ‘Implications of Tort Law Decisions’ (Address to Northern Ireland Personal Injury Bar’s Inaugural Conference, County Down, 13 May 2017)

Oliphant K, ‘Against Certainty in Tort Law’ in Pitel S, Neyers J and Chamberlain E (eds) Tort Law: Challenging Orthodoxy (Hart Publishing 2013)

Porat A and Stein A, Tort Liability Under Uncertainty (OUP 2001)

Stevens R, Torts and Rights ( OUP 2007)

Teff H, ‘Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries’ (1988) 57(1) CLJ 91

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Tort Law: Negligence and Liability Essay

The Webster dictionary defines tort as an action which causes harm to other people (Fleming, 1992). It can also be termed as a civil wrong caused when individuals indulge themselves in unreasonable actions. Tort claims are based on the belief that people should always take responsibility of their actions, especially, when such actions cause injuries to other people.

The tort laws are divided into two categories which are known as intentional and negligent torts. Just as the name suggests, intentional torts are actions imposed on specific kinds of offences committed with the offender’s full knowledge of the expected outcome.

This kind of tort is proven if a person commits it with very clear knowledge of the outcome of the actions (Hill, 1991). Examples of two common types of intentional torts include assault which is an intentional attempt to hurt a person by inflicting fear and battery which are the acts of hurting a person physically.

On the other hand, tort of negligence refers to all the actions that violate the expected standards of duty and care without intentions of doing so. A claimant is required to prove four main elements when reporting negligence tort. One is supposed to prove on the duty to protect the actual injury, breach of duty and the proximate cause (Mallor, 2010).

Every individual in the society is required by law to take responsibility of caring for all the people, hence every person is liable to duty to protect.

This, therefore, means that people are required by the law to do things perfectly, always avoiding all the forms of negligence and recklessness that can cause harm to other members of the society. For instance, all the doctors are entrusted with the responsibility of taking care of their patients by prescribing appropriate medications as well as providing them with the right treatment (Stein, 2002).

An individual is liable to breach of duty in instances where one fails to exercise reasonable standards of care when attending to other people. This can happen intentionally or unintentionally through exposing other people to dangerous situations which pose threats and consequently result to some sort of damages (Fleming, 1992). This concept can be imposed implicitly or expressly.

For instance, if individuals enter into a given contract, the terms and conditions of the contract are likely to impose certain duties and rights on all the contract parties. In cases where one party fails to honor the terms and conditions of the contract, it is liable to breach of duty to the other ones (Peck, 1990).

The law, however, expects individuals engaged in particular relationships, such as family relationships, to take the duty of responsibility. For instance, the law places high standards of care on parents with the responsibility of taking care of their children, hence a stranger may never be liable breach of duty as a result of child neglect.

Actual injury element is based on the principle highlighted by the fact that breach of duty eventually causes injury or loss to the affected individuals. Therefore, when imposing neglect tort, the claimant must always produce evidence of injury since lack of the evidence justifies the defendants against committing any form of tort. Damage of property and emotional stress are addressed under this element of negligent tort (Stein,2002).

Lastly, the factual or legal causation which is also known as the proximate cause states that there is a link between injuries resulted and breach of duty. If there is no link between the two, this element states that no monetary compensation is awarded to the complainant. Sometimes, the defendant may have legal causation or no factual causation for injury caused.

Fleming, J.G. (1992). The law of torts. Washington, DC: Law Book Co.

Hill, T.F.(1991). A Lost Chance for Compensation in the Tort of Negligence by the House of Lords. The Modern Law Review , 54, 511-523.

Mallor, J.B., Barnes, A.L.,Bowers, T. K.,& Langvardt, A. M. (2010). Business law: The ethical, global and e-commerce environment. ( 14th ed.). New York: McGraw Hill/Irwin.

Peck, C.J. (1990). Negligence and Liability Without Fault in Tort Law. Wash. L. Rev, 46 (62), 225-236.

Stein, M.A. (2002). Priestley v. Fowler (1837) and the emerging tort of negligence. BCL Rev , 44, 698-790.

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IvyPanda. (2019, May 15). Tort Law: Negligence and Liability. https://ivypanda.com/essays/negligent-tort-essay/

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Tort Law Essays

Under what circumstances is it desirable for the court to impose punitive damages? Do you think it would be correct to impose punitive damages on BP for the Deepwater Horizon oil-spill?

Should courts ever award exemplary damages and why? Should the benefit of such awards accrue to the benefit of the claimant suffering this wrong?

Psychiatric Injury

Psychiatric injury is equally serious as physical injury. Therefore, the duties of care owed in respect of psychiatric injury should be the same as those owed in respect of physical injury. Discuss.

Should there be special tests of causation to deal with injustices?

Breach of Duty

The law on breach of duty in negligence can be reduced to a simple principle: the defendant will be said to have breached its duty of care where the expected benefits of taking a precaution outweigh the costs of doing so. Discuss.