Duty Of Care: An Essay On Tort Law

The Tort of Negligence

Write an essay on Duty of care.

The law of tort consists of some act or omission done by the defendant (tortfeasor) whereby he has without just cause or excuse caused some harm to plaintiff. In order to give rise a tort, there should be:

1. A unlawful act or error of the defendant
2. The unlawful act should be leading legal damage to another; and
3. The unlawful act should be of such a nature, which give rise to a legal remedy.

The fact of this case states that George Michael who is the owner of groove olive in Koala Island was apparently one of the top producer of organic olive oil. While on the other hand Andrew Ridgeley who is just adjacent to the George’s Olive farm employed a pilot who mistook his master plot for George’s plot and sprays aerial chemical pesticides. Because of this it has led to a major impact on Oleocampo olive groves and he was unable to produce anymore. The case study reflects that Andrew did not knew about the act of his pilot olive grooves which was just adjacent to his land and had been negligent. Andrew Ridgeley will be held liable for the damages caused under the law of tort for “vicarious liability”. It was held in the rule of Rayland vs Fletcher (1868) L.R 3 H.L 300 that a person acts at his peril and he is the insurer of the safety of his neighbour against the harm resulting from accidental cause (Daye and Morris 2015).

The case study give the rise of vicarious liability as a person may be held responsible for the tort committed by other. Hence, in this Andrew is the master and he is vicariously liable for the tort committed by his pilot, principle for the tort of his agent. This is known as the vicarious liability of tort. In the Lloyd vs Grace, Smith & Co (1912) A.C 716 the managing clerk of the firm of solicitor, while acting in the ordinary course of business committed fraud against a lady client by including her signature fraudulently in to the documents transferring her property to him. The clerk committed such fraud without the knowledge of his principle who was held liable as the fraud was committed during the course of employment.

Such duty is absolute as because it is independent of negligence on the part of defendant or his servants. It was in the case law that if a person brings or accumulates on his land anything, which is capable of causing damage to his neighbour, he does such act on his own peril. It he does not escape and cause damage to his neighbour he  will held liable for such act of negligence, however careful he may have been and whatever may be the precautions he may have undertaken to prevent such damage.

Elements of Duty of Care

The above stated case study reflects that George Michael should sue Andrew Ridgeley under the prevailing circumstances; it is legally wrongful concerning the party suing under the act of negligence on the part of defendant. In other words the act caused by Andrew is prejudicially effects the above-mentioned interest which is legally protected by law.

While on the other hand Julie who used to work in the olive grove of Michael’s has legal right to sue Andrew under the “Damnum Sine Injuria” as it has caused damaged, harm or loss in respect of money, level of comfort, health etc. Injuria refers to the infringement of the right which is conferred by law to the plaintiff. The maxim refers in this given case, that Julie who have suffered damage and loss in terms of money and it is liable action in tort, because the damage is protected in terms of law of torts. Some rights or interest are of significance importance and their violation cannot be ignored and it is liable for an actionable tort without the need for proof of damage. Thus, Julie will be successful if she sues Ridgeley his act of negligence has give rise to invasion of the plaintiff rights, there is an injuria, and the actions of the plaintiff will succeed (Goldberg and Zipursky 2012).

Conclusion:

This above stated case study highlights that there are two important element that a tort leads to civil injury or wrongful act due to which an infringement of right of an individual should be compensated when a plaintiff files a suit against the party who caused an injury. Hence, tortuous liability gives rise to the breach of duty  

In the present case, it is observed that Wyatt Marlstone who is well known chef hosting a regular television shows is also one of the customers of Oleacampo’s. On hearing that Oleocampo’s will not be able to provide him with the olive oil for a period of one year leads to nervous shock. This branch of law of torts is comparatively new and of recent origin. Such law provides relief only when a person suffers a physical injury not by an impact arising from stick, bullet or sword but merely due to the failure of the nervous systems generating shock on hearing something or seeing something. However, it must be noted that causing of nervous systems shock cannot be considered adequate to make it actionable under the law of tort. The law states that some injury or nervous systems illness must happen because of the emotional disturbance, or fear or sorrow (Kelly et al 2015).

The creation of duty of care is in the form of negligence which is broken up into three elements. As stated in the “Donoghue vs Steveson it laid down the framework for subscequent development. According to “Lord Atkinson Speech” it is observed that the concept of reasonableness is seen as the cause of harm. While on the other hand the second element states that both the claimant and the defendant must be in the relationship of proximity and the final element states that it is fair and just to held a person liable on the part of defendant for his reckless actions. The above stated three elements did not materialise until the case of Caparo industries vs Dickman.

The above stated case study is in relation to the torts or wrongful act to personal safety and freedom. Maggie suffered mental trauma on hearing such happening and it is advisable to Maggie that she can sue Ridgeley for his negligent actions (McMahon and Binchy 2013).

The law states in the above stated case study that once a duty of case is created it must reflect that the duty has been breached. The questions, which will be raised in the court of law, will be based on the behaviour of the defendant who in this is Ridgeley below the threshold of the reasonable man. However, it is understood that allowance is granted to the defendant on the basis of his age. While on the other hand there could also be no allowance can be granted based on the personal circumstances. Hence, the case reflects that the defendant is experienced to carry out his responsibility as a reasonably skilled and competent person (Pound et al 2013).

The condition for the liability of tort is the legal remedy for the damage. In the present case study it is evident that Maggie suffered nervous shock due to the negligence of Ridgeley. Hence, such actions constitute a tort and such unlawful act is covered under the law. The remedy for a tort is an action for un liquidated damages or some specific remedies can be obtained for example Maggie can file an injunction which may be obtained in addition to the damage or a specific restitution can be claimed for such damages caused.

Conclusion:

The case study reflects that Maggie could not bear the news of heart attack as the nervous system could not hold through the nerves in order to prevent injury. Such acts are actionable under the law of tort as it states that the plaintiff has suffered personal injury as the result of the emotional damages causing disturbances, fear and sorrow.

Reference List:

Daye, C.E. and Morris, M.W., 2015. North Carolina Law of Torts. LexisNexis.

Geistfeld, M.A., 2014. Risk distribution and the law of torts: carrying Calabresi further. Law & Contemp. Probs., 77, p.165.

Goldberg, J.C. and Zipursky, B.C., 2012. Rights and Responsibility in the Law of Torts. Rights and Private Law, pp.251-274.

Kelly, K., Schwartz, V. and Partlett, D.F., 2015. Prosser, Wade, Schwartz, Kelly, and Partlett's Torts, Cases and Materials.

McMahon, B.M. and Binchy, W., 2013. Law of torts.

Pound, R., Ames, J.B. and Smith, J., 2013. A Selection of Cases on the Law of Torts. Harvard University Press.

RECOURSE, C. and Calabresi, G., 2013. AMERICAN ASSOCIATION OF LAW SCHOOLS TORTS & COMPENSATION SYSTEMS PANEL.

Shulman, H., James, F., Gray, O.S. and Gifford, D.G., 2015. Law of Torts: Cases and Materials.