Tort of Negligence

Tort of Negligence

Negligence refers to a situation where a person fails to exercise ordinary care to avoid injury to persons or property. In other words, a person can be said to have been negligent if they did or failed to do what a reasonable person would do and as a result caused injury to persons or damage to property (Larson, 2003). For instance, a doctor who administers medicine to a patient without doing a thorough prognosis and goes ahead to administer treatment that later harms the patient due to a peculiar condition they have can be said to be negligent. This is because a reasonable doctor would be aware of the possible side effects that medications could have on patients and therefore would do a prognosis to pre-empt such a situation (Stimmel and Smith, 2000). In this case, it would be expected that the driver would be aware of the fact that different vehicles have different levels of stability when taking corners. A reasonable driver would be expected to obtain all the information needed for safe driving; or at the very least exercise due caution. A driver would be aware that taking corners should require extra care: especially where they are not familiar with the vehicle they are driving.

Four elements must be present for a suit on the tort of negligence to be sustainable: duty of care, breach of duty, proximate cause, and actual loss or harm (Negligence, 2012). Duty of care is owed to all foreseeable plaintiffs with the main yardstick being that a reasonable person should have been able to foresee risk of injury under the anticipated circumstances. In this case, a reasonable driver would expect that in case of an accident, the passengers were likely to sustain injuries and the driver is therefore bound to take reasonable measures to avoid the eventuality of such a case. The duty of care should be owed to parties to a contract as well as third parties. For instance, the parties to the contract in this case were Simon and the driver. Beyonce is a third party. However, the driver owed her a duty of care by virtue of the fact that she was a passenger in the car. For a plaintiff to sustain their case under the tort of negligence, they should be able to prove that the defendant breached that duty (Kirsty, 2011; Jenny, 2010). In this case, the driver failed to be cautious enough and the duty of care has therefore been breached.

The third element that must be satisfied is proximate cause and it refers to the fact that the injury caused should be as a direct consequence of the defendant’s negligence. Beyonce was a passenger in the vehicle and was injured as a direct consequence of the accident. The element of proximate cause is therefore satisfied. There must also be an actual injury or loss as a result of the negligence. The injury must have already been suffered and not merely anticipated. In this case, Beyonce not only got injured but also suffered loss to her business. Beyonce can therefore ably sustain a case against the defendant under the tort of negligence.    

Defence under tort of negligence and corresponding opinions

The most common approach taken in defence under negligence is to try and prove that some of the elements under the tort of negligence do not exist. For instance, the defendant could want to denounce the existence of duty of care. This could be done by arguing that the contractual agreement was between the driver and Simon. Beyonce is a third party in this case. However, such defence would be defeated by arguments raised in the case of Donoghue vs Stevenson (1932) where a third party was awarded damages after consuming a drink which was found to contain a decomposed snail (Negligence, 2012). In this case, it was established that the absence of a contractual arrangement did not necessarily imply the absence of duty of care. A driver is expected to have a duty of care for all passengers irrespective of the contractual arrangement.

The defendant could also want to argue that there may have been no proximate cause in the case of losses occasioned by the plaintiff’s inability to release her latest single. The argument here would be that it would be impossible to determine that the losses incurred were as a direct consequence of the driver’s negligence. For tort of negligence to be sustainable, the loss should be an actual consequence of the defendant’s negligence (McClurg, 2000). The defendant would be able to raise legitimate questions on how the loss of business was arrived at with the argument being that the plaintiff could possible not be sure that her release would have been profitable had the latest single been included. The duty of care as far as loss of business is concerned is absent in the sense that it would have been impossible for the driver to foresee that his negligence could result in business losses for Beyonce.

It should also be noted that Beyonce did not wear a seatbelt. Seatbelts are known to be instrumental in the prevention of injury during accidents. This implies that the injuries suffered could have been less had the plaintiff played her part by wearing a seatbelt. This is referred to us contributory negligence. Where a plaintiff contributes to their injury or loss, the defendant can seek the dismissal of the case, or at the very least demand that an analysis be made on the relative contribution to the injuries and reduce the damages awarded appropriately (Cooper-Stephenson, 1993). The aim of the defendant would be to allocate as much blame as possible to the plaintiff and thereby reduce his award to the lowest level possible. Beyonce would on the other hand be well advised to raise arguments that diminish her relative contribution towards the injuries and losses suffered. 

References

Cooper-Stephenson, K.D., 1993. Tort Theory. North York, Ont. Captus University Publications

Jenny, S., 2010. Tort law: text, cases, and materials. New York: Oxford University Press

Kirsty, H., 2011. Tort Law. Oxford: Oxford University Press

Larson, A., 2003. Negligence and Tort Law. (Online) Available at: http://www.expertlaw.com/library/personal_injury/negligence.html (Accessed 25 March 2012)

McClurg, A.J., 2000. Armed and Dangerous: Tort Liability for the Negligent Storage of Firearms. Connecticut Law Review, 32, pp. 1189-1245

Negligence, 2012. Negligence: duty of Care. (Online) Available at: http://www.oup.com/uk/orc/bin/9780199574353/bermingham2e_ch04.pdf (Accessed 25 March 2012)

Stimmel, S., Smith, p., 2000. Torts: Negligent and Intentional. (Online) Available at: http://www.stimmel-law.com/articles/torts.html (Accessed 25 March 2012)