Tort: Basics of Negligence

• the tort of negligence is based on the concepts of duty of care, breach of duty and resulting (not too remote) damage. 
• the word tort derives from the french for "wrong"
• tort is the law of civil liability for wrongfully inflicted injury (at least a very large part of it)
• Sir Henry Maine: "the penal law of ancient communities is not the law of crimes, it is the law of wrongs, or, to use the English technical word, of torts" (Ancient Law (1861) p.328)

A successful claimant in a negligence action must establish:

•  that defendant owed claimant a duty of care. Claimant will in some cases be the only person to whom that duty was owed (e.g. a patient). In other cases it will be a member of a large, possibly ill-defined group of people (e.g. road users). 
• defendant broke the duty of care. His conduct fell below standards demanded by law. 
• as a result of that breach the claimant suffered damage recognised by law as worthy of compensation. 

(these propositions overlap in practice)

Policy Questions

underlying idea in a negligence action:

• if the claimant's injuries result from behaviour that falls short of socially acceptable standards then there should be compensation. 
• carelessness isn't generally criminal. Tort is the means by which the law attaches consequences to unacceptable behaviour. 
• Lord Diplock: negligence is the "application of common sense and common morality to activities of the common man" (Doughty v Turner Metal Manufacturing Co (1964) 1QB 518)
• the House of Lords recently made decisions for/against liability based on what people generally would regard as fair (e.g. public view on fairness).
• public view may change over time. 
• how accurately does the law reflect the public sense of fairness?
• there is uncertainty as a consequence of the emphasis on fault. 
• may be difficult to reach agreement as whether or not a defendant was careless
• entitlement to compensation may depend on strength of evidence before the court or bargaining positions of the parties or financial resources available to the defendant. 
• (fear of) compensation culture

note: we didn't really get any reading this week, hence why this is so short. I've read Lunney& Oliphant Chapter 1, because absence of explicit reading instructions makes me suspicious, and I am weird that way: but I didn't make workable notes on it (also because my other subjects were very generous with the reading). If you're a bit strange like me, you will probably end up reading it too.