Law of Tort and Concept of Duty of Care in Tort of Negligence: Analytical Essay

This essay will refer to The English Legal system, which operates in England and Wales. This does not provide formal divisions although it can be subdivided between Public and Private law, which is divided in turn, between property law and the law of obligations. This essay will be providing an in-depth understanding of the Law of Tort and the concept of duty of care in Tort of Negligence. Tort law provides for civil rather than a criminal liability. Some crucial distinctions between the two, having to do with who the parties are (plaintiff v defendant and people v defendant), what the possible outcomes are (liable or guilty), the applicable standard of proof (preponderance of the evidence or beyond a reasonable doubt), the consequences for the defendant (civil damages or criminal penalties) and lastly, the procedural rules that apply (civil procedures or criminal procedures). Within civil obligations, an individual is morally or legally bound to do something, this consists of contract, tort, and restitution. Few are differences that distinguish contract law and tort law: In contract law, both parties must enter an intentional agreement, while in tort law, it is not based on consent, but by the incursion of one party to another in harm. Also, where in contract law damages will be awarded the injured party for a breach of contract, in tort law will award damages to compensate the injured party for their loss. Both branches of law, however, provide damages and vindicate some of the rights that an individual has.

The term “tort” is a French word used to define a civil “wrong” or a wrongful act. Many are the torts that represent and concern Tort Law (e.g. Tort of battery, assault, defamation, fraud), which have in common an idea of fault (wrong). The most dynamic area within the tort of law, it is the tort of negligence, the greatest source of litigation. Negligence is the breach of a legal duty to take care resulting in damages to the claimant, this applies in a context of personal injuries or property damaged because of the negligence of another person.

The definition of negligence comes from the case of Blyth v Birmingham Waterworks (1856). Judge B Alderson pictures negligence as ‘the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do’. Within the tort of negligence, the first condition to be considered is whether the first person owns the other person a duty to take care, therefore a person that fails to take reasonable care is called negligent.

If you successfully sue somebody you will be able to claim damages such as financial payments, which will put the claimant back onto the position they would have been prior. You might also be able to receive an injunction which forces or stop a party from doing something. E.g. move somebody else’s bin from my property.

Until the 19th century, there was not specific way of determining the duty of care although negligence liability always existed within few aspects (doctor and a patient), generally, no test could determine if liability existed or not.