Did I bite off more than I can chew? Norchaya may hate me for this.
Tort is making my head spin. While the basic principles may seem straight-forward at first, but things are never as simple as they seem. I’ll try to summarise what I have managed to glean thus far. I’ve only gotten through the tort of negligence.
Essentially, you’ve got to show that there is a duty of care, that the duty was breached, that there was some legally recognised damage, and that there was a direct causal link between the breach of duty and the damage. Seems simple enough right?
As they say, the devil’s in the details.
The trick is in trying to determine that there is a prima facie case for duty of care. If that cannot even be proven, there is no tort. The landmark case here is Donoghue v Stevenson where Lord Atkin delivered the now famous judgement of:
There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.
Essentially, there has to be the essence of proximity and foreseeability. As the case illustrates, proximity isn’t necessarily about physical distance but also in terms of a direct relationship such as a manufacturer and a consumer. Foreseeability is harder to determine and this brings us to the next related part – breach of duty.
The trick in determining the breach of duty is the reasonable man’s test. The landmark case here is Blyth v Birmingham Waterworks that determined the standard of care to be met. This is particularly applicable to experts in any field.
Given a particular situation, another expert in the field should reasonably come to the same conclusion. The law allows for differing schools of thought such as Emacs vs Vi but a reasonable expert should have acted in a similar way. Otherwise, there is a breach of duty.
However, sometimes a situation presents itself where breach can be determined by simply looking at the facts of the case using the principle of res ipsa loquitur, but this is generally only applied where the defendant does not take the opportunity to defend their own actions.
The only possible defence against this is to show that the plaintiff is responsible for contributory negligence. Otherwise, the case is closed as there is no conceivable way that a surgical knife could end up inside a person’s abdomen unless the surgeon was negligent in a surgery.
The next trick is in determining the direct causal link between the breach of duty and the damage. For this, we are aided by the but for test. The issue can be essentially determined by highlighting that the damage would not have happened ‘but for’ the breach.
There are a lot more little details to deal with but that’s what I essentially learned about negligence.