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The Forms And Functions Of Tort Law Add in library

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1. Assume that you are a legal adviser and Tom has described the events leading to the damage to his property, would you advise him to take a civil or criminal action against James? Explain why you have chosen this type of action.

2. What cause of action would you advise Tom to take against James? State the name of the case that this cause of action originated from and provide its reference.

3. List the elements of the cause of action that Tom would need to prove in order to succeed. Apply the elements of this cause of action to the facts.

4. What is the likely outcome for Tom of a successful action against James?


1. In the given circumstances, Tom can take civil legal actions against his neighbor James on the ground of Tort of Negligence. Under the English common law and the Australian legal regulations, negligence is an act of failure to exercise reasonable care under given circumstances. The Tort law can be applied in cases where the acts of carelessness by the individual have caused monetary of physical damage to the claimant. Tom in this context can file a suit against the defendant James on the grounds of Intentional damage to economic interests, which is a part of the Tort Law of Australia (Goldberg, Sebok & Zipursky, 2012).

2. On providing sufficient proves of the above three elements, Tom can claim both civil claims as well as criminal claims. Under the Tort of negligence Tom can claim for penalty and compensation for the damages caused to his car. Under the criminal claims however the defendant may also secure a prison sentence as a penalty. However since Tom has no suffered from any actual physical harm as per the Common Tort Law, hence he can only claim for civil actions against the defendant (Bermingham & Brennan, 2012).

The case of  Donoghue v Stevenson [1932] AC 562 illustrates the law of negligence. The case focused on the negligence of duty on the part of a café owner bought in by the claimant Mrs. Donoghue. The claimant found a part of a snail immersed within the beer that she had ordered in a café. She filed a suit against the café owner claiming breach of duty of care. This case gave rise to the modern law of negligence stating that every individual should love their neighbor and must not injure the neighbor intentionally or unintentionally.


3. The major elements that Tom needs to prove in order to avail the tort of negligence are namely Duty of care, breach of duty and damages. In the context of the case the elements are found as follows:

Duty: The defendant (James) owed a duty of care regarding the possibility of the accident to the claimant (Tom).

Breach of Duty: James has broken the duty of care intentionally. In this case, the claimant can also file a suit against him on the grounds of Intentional tort.

Damages:  The plaintiff must show the prove of the damage which has been caused by the breach of the duty of care. The damage caused i.e. the damage to the expensive car of tom, by the intentional negligence of the defendant (Stewart & Stuhmcke, 2012).

4.  Keeping the case details in mind, it can be suggested that Tom will be successful in his claims against James because he can successfully prove all the three essential elements of the Tort of negligence. Thus, Tom can take civil actions against James and claim for monetary compensation from James. Moreover judging the magnitude of the risk that could have been caused by the hanging branches of the tree, Tom can also file for a criminal action against James for intentional negligence of the facts. (Abraham, 2012)


Reference list

Abraham, K. (2012). The forms and functions of tort law. New York, N.Y.: Foundation Press Thomson/West.

Bermingham, V., & Brennan, C. (2012). Tort law. Oxford: Oxford University Press.

Goldberg, J., Sebok, A., & Zipursky, B. (2012). Tort law. New York: Wolters Kluwer Law & Business.

Stewart, P., & Stuhmcke, A. (2012). Australian principles of tort law. Annandale, NSW: The Federation Press.



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