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Tort law and civil wrongs
Tort law is a body of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations (White, 2003,p3) . A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or liable, for those injuries. Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another's injury. Torts cover intentional acts and negligent acts, which is often said by accidents. While in criminal law, the offense is against the State and the State is the plaintiff; in tort law, on the contrast, the offense is against a person and that person is the plaintiff (Arthur and Barnes, 2003).
In much of the western world including Australia, the touchstone of tort liability is negligence. If the injured party cannot prove that the person believed to have caused the injury acted with negligence, at the very least, tort law will not compensate them (Arthur and Barnes, 2003). Tort law also recognizes intentional torts and strict liability, which apply to defendants who engage in certain actions (Calnan, 2003). Since negligence is the most important areas of the law of tort, there are three widely accepted essentials in negligence, which are called the "tortious triumvirate."¬? The first one is that the defendant owed the plaintiff a "duty of care"¬?. Secondly, the defendant failed to conform to the required "standard of care"¬?; and thirdly, there was a "sufficient connection in law"¬? between the defendant's conduct and the damage, whether loss or injury, suffered by the plaintiff.
In contemporary time, some might argue that among the three elements that establish the action in negligence, which are the duty of care, the standard of care and the sufficient connection in law, the first one is the least difficult one, and should not be given the same importance. However, it is not always the case in the real world situations. In this essay, the three important and essential elements would be analyzed and discussed in detail. Further, the importance of the principle of duty of care would also be evaluated and with comparison to the other two elements.
As widely known, the law of torts is a body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others (Shapo, 2003). The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant (Arthur and Barnes, 2003).
The law of torts is derived from a combination of common-law principles and legislative enactments. Unlike actions for breach of contract, tort actions are not dependent upon an agreement between the parties to a lawsuit (Arthur and Barnes, 2003). Unlike criminal prosecutions, which are brought by the government, tort actions are brought by private citizens. Remedies for tortious acts include money damages and injunctions and the defendants are subject to neither fine nor incarceration in civil court (Arthur and Barnes, 2003).
The law of torts serves four objectives. First, it seeks to compensate victims for injuries suffered by the culpable action or inaction of others. Second, it seeks to shift the cost of such injuries to the person or persons who are legally responsible for inflicting them. Third, it seeks to discourage injurious, careless, and risky behavior in the future. Fourth, it seeks to vindicate legal rights and interests that have been compromised, diminished, or emasculated. In theory these objectives are served when tort liability is imposed on defendants for intentional wrongdoing, Negligence, and hazardous activities (Shapo, 2003).
As one of the most important areas of the law of tort, negligence is relevant with people in community and business in a lot of areas. Since established in the case Donoghue v. Stevenson  in Australia, there was not a standardized definition of the action in negligence, sometimes the appliance of negligence in one case can vary greatly from one to another (Gibson et al 2008). It is under that circumstance that the three essential elements have developed to determine if negligence exists or not. The three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach (Gibson et al 2008).
At any rate, the three elements, that is duty of care, breach of care and damage, are most essential and important elements in any case of negligence. The understanding, interpretation and application of these elements are most important in establishing actions in negligence. The following part of this essay is going to examine them in detail.
Duty of Care
As the first step in establishing actions in negligence, the defendant must owe a duty of care to the plaintiff. In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others (Blay et al, 2005). It is the first element that must be established to proceed with an action in negligence. The plaintiff must be able to articulate a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability in tort (Mark Garwin, 1998, p101). The examination of duty of care below will follow the development of the principles and provide the historical approach as well as the contemporary approach.
At common law, duties were formerly limited to those with whom one was in privity one way or another, as exemplified by cases like Winterbottom v. Wright . Such kind of duty of care is the first essential the plaintiff has to be established if he wants to proceed with an action in the name of negligence. The plaintiff must be able to describe and prove the existence of duty of care imposed by law and the defendant has breached the duty of care. Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society (Gibson et al, 2008). It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law. This is often seen as the "privity principle."¬?
In the early 20th century, judges began to recognize that enforcing the privity requirement against hapless consumers had harsh results in many product liability cases. The idea of a general duty of care began to apply to all who could be foreseeably affected by one's conduct. This idea also accompanied by the demolishing of the privity barrier. It first appeared in the landmark U.S. case of MacPherson v. Buick Motor Co.  and was imported into UK law by another landmark case, Donoghue v Stevenson . It established the classic formulation as the test of duty of care (Gibson et al, 2008). In the case, the Lord Atkin stated that "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor"¬?. This is referred to as "neighbor principle"¬?, which is regarded as mere a simple test of foreseeability of harm.
The contemporary approach has been devised through the case decisions and the legislation. In the case Caparo Industries Plc. v Dickman , the House of Lords set out the following three-stage test: first, the harm must be a "reasonably foreseeable"¬? result of the defendant's conduct; second, there must be a relationship of "proximity"¬? between the defendant and the plaintiff; and third, it must be "fair, just and reasonable"¬? to impose liability (Gibson et al, 2008).
Foreseeability and proximity involve an evaluation of the factual circumstances of the parties before the court while policy considerations (referring to fairness) usually involve a consideration of the consequences of different legal rules for non-parties about whom knowledge will be limited (Witting, 2005). However, this principle was rejected by the High Court in a unanimous judgment in Sulllivan v. Moody  later. Finally, the decision made by the High Court in Tame v. New South Wales  established the "reasonable foreseeability"¬? as the touchstone of liability (Blay et al 2008) and added new elements in negligence as well. From those developments in the history, the contemporary perception is more concerned with a reasonable objective test of the duty of care, and the control mechanism as to limit the scope of duty of care owed by the defendant to the plaintiff.
Standard of Care
The second one of the main elements of the substance of negligence is determining the standard of care"?a legal phrase that means distinguishing between when conduct is or is not tortuous (Angela Forster, 2001,p83). Put another way, the big issue is whether a person suffers the loss from his own injury, or whether it gets transferred to someone else. The following discuss will focus on the two important topic about the reasonable person and the guidelines of establishing breach.
The Reasonable Person
As an important element of the standard of care, the reasonable person means that one person has to act as a reasonable people would have in the specific circumstances, which means generally the defendant should hold the presumed average intelligence (Blay et al, 2008). In Blyth v. Birmingham Waterworks Co , the judge Alderson B stated that "negligence"¬¶which a reasonable man"¬¶or"¬¶a prudent and reasonable man would not do"¬?. In other words, only reasonable person would be able to breach the duty of care. Generally, a reasonable is described as someone of average intelligence and perception of the surrounding circumstances and knowledge of matters other reasonable persons would not do (Blay et al, 2008).
Generally, the expected standard of care is that the reasonable person is equipped with the same skills and expertise as others in similar situation, which in essence is indifferent to each situation (Blay et al 2008). The decision in case Cook v. Cook  showed a different standard of care applied in an inexperienced person. Further, the standard of care gives way to standard of children of the relevant age and experience, which has been shown in the case Waverley Council v. Ferreira  that the standard of care was that of a 12-year-old child.
Guidelines establishing Breach
The standard of care is the degree of prudence and caution required of an individual who is under a duty of care. A breach of the standard is necessary for a successful action in negligence. The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, there are some guidelines to follow.
In determining the breach of duty of care, the court takes 3 steps into account (Gibson et al 2008). The first step, as discussed early, is whether the risk is foreseeable by a reasonable person. The principle has been applied in the case Bolton v. Stone . Secondly, it involved with whether the risk is significant. This has been applied in the case Paris v. Stepney Borough Council . Finally, the court would evaluate whether a reasonable in the plaintiff's position would have taken the precaution.
Sufficient Connection in Law
The third essential for negligence is that there must be sufficient connection in law between the damages suffered as a result of defendant's breach of duty and the defendant's conduct. It is always judged from two perspectives of causation and remoteness.
The responsibility of proving the damage suffered was caused by the defendant's breach is on plaintiff. The principle at common law is the "but for"¬? test which is whether "the harm would not have occurred to the plaintiff but for the defendant's actions"¬? (Gibson et al 2008). This principle was approved of by the decision of High Court in case Barnett v Chelsea & Kensington Hospital . However, other tests may also be applied; the most common one is the "proof of causation"¬?. As it sounds from the words, when there are two or more acts or events which would each be sufficient to bring about the plaintiffs injury, responsibility and damages are apportioned. This principle was applied to the case Pickford v Imperial Chemical Industries .
The remoteness principle requires that the loss or injury suffered by the plaintiff should not be too remote, which is designed as a further approach to limit cause of action to ensure that certain liability will be fairly placed on the defendant (Gibson et al, 2008). The case of R. v. Goldhart  ruled that the defendant is liable only for the types or kinds of damage that were reasonably foreseeable, which is that once the risk can be accepted as "real"¬? and "not far-fetched"¬?, the damage that flows is to be regarded as reasonably foreseeable. In other words, if the damage is considered to be too remote from the defendant's careless conduct, then the negligence would not be established.
From the above discussion, the importance of those three essentials lies in determining the action of negligence. Clearly, all of the three essentials have vague definitions and the actually results of different cases may vary from judge to judge and from one judgment to another. Sometimes, there are objective tests and clear logics for the principle in establishing standard of care and sufficient connections in law (Arthur and Barnes, 2003). While for duty of care, it is not necessarily the least difficult one. Several reasons will be discussed as follows.
Importance of Duty of Care
The duty of care concept has at least two purposes. The first is to provide an overall framework for the huge variety of situations in which liability may arise. For centuries the law has recognized relationships in which one person owes a duty to another (Blay et al, 2005). What was lacking was a general principle of which the various cases were illustrations. The second purpose is one of limitation, setting the boundaries within which one person could be liable to another for the consequences of careless behavior. Whether neighbor principle, foresight, proximity or fairness, as its principles evolved, the duty of care always plays an important role in determining tort of negligence (Angela Foster,2001). It helps to set the basic characteristic and fundamental logic for the other two, especially the standard of care and the breaching of duty.
Functions of the Duty Concept
Traditionally the duty concept has been seen as serving two separate functions: first, is there a duty at the abstract level, whether the notional duty or duty in law (Calnan, 2003)? For instance, does a motorist owe a duty of care to other road users? Or do barristers owe a duty of care to their clients? Second, is the particular plaintiff within the scope of the duty of care, whether duty in fact or the problem of the unforeseeable plaintiff (Calnan, 2003)? For the same instance, was this particular road user owed a duty by this particular motorist?
Notice that the duty in fact is either as a matter of breach of duty or as a matter of remoteness of damage (Witting, 2005). Some cases then are clear. Users of machinery on the roads, on building sites, in workplaces owe a duty of care to those likely to be affected. So do doctors, nurses, dentists, hairdressers and others providing services to the public. As mentioned earlier, there are still situations where there has been doubt of the application of the concept of duty of care. For example, Should a host at a party owe a duty of care to prevent a guest driving home drunk and injuring a pedestrian?
Scope of the Duty of Care
There is no liability in negligence unless there is a duty to take care. This establishes the necessary link between the plaintiff and the defendant. Such duties are widely recognized. In cases of doubt the modern test is whether there was foreseeability and proximity and it was fair, just and reasonable to impose the duty (Witting, 2005).
As mentioned above, duty of care plays an important role in determining tort of negligence. From the perspective of historical development, it has evolved from the original simple test of foreseeability --"neighbor principle"¬?, to "proximity principle"¬? and finally to "reasonable foreseeability test"¬? in at common law (Gibson et al, 2008). In addition, the development of statutory law with respect to duty of care also has contributed to the extension and limitation of scope of a duty of care owed by a defendant to a plaintiff.
Duty is about relationships, and it must be shown that the particular defendant stood in the required relationship to the plaintiff such that he came under an obligation to use care towards him. This relationship is sometimes referred to as "proximity"¬?. In cases of personal injury or damage to property the necessary relationship is established if the defendant ought to have foreseen damage to the plaintiff whereas in other cases a closer relationship may be required (Garwin, Mark,1998). Thus, duty means "proximity"¬? in the legal sense, and proximity means the level of closeness of relationship required for the particular kind of damage. Foresight of damage is a necessary ingredient in all cases of negligence and finally there is a policy element which is expressed by the view that it must be just and reasonable to impose a duty in that class of case.
Accordingly, in order to establish a duty of care it must be shown that: (1) some damage was foreseeable to a foreseeable plaintiff; (2) there is a sufficiently close relationship between the parties to establish a duty in that class of case (proximity); and (3) that it is just and reasonable to impose a duty (Witting, 2005).
In sum, duty of care is but one element in the tort of negligence, for it must be shown that not only was the defendant under a duty towards the plaintiff to be careful, but also that he failed to achieve the required standard of care and that that failure caused the damage, and finally that the damage was not too remote a consequence of the act.
Angela Foster,(2001),The duty to care and the need to split, Journal of Social Work Practice, vol. 15 No 1:81-90
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Blay, S., Gibson, A. and Richards, B. (2005), Torts Law in Principle, Law Book Co., Sydney 4th ed.
Blay, S et al, (2008), Business Law: Reading Materials for Legal Environment and Commercial Laws, Thomson Lawbook Co., 4th ed.
Calnan, Alan. (2003), A Revisionist History of Tort Law. Durham, N.C.: Carolina Academic Press.
Gibson, A. and Ase, D. F, (2008), Business Law, Pearson Education Australia, Prentice Hall 3rd Ed.
Garwin, Mark,(1998),The duty to care"?The right to refuse, Journal of Legal Medicine,19:1,99 "? 125
White, G. E. (2003), Tort Law in America: An Intellectual History, p. xxiii.
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Shapo, Marshall S. (2003), Principles of Tort Law. 2d ed. St. Paul, Minn.: West.
Table of Cases
1. Donoghue v. Stevenson  AC 562
2. Winterbottom v. Wright  WL 5519
3. MacPherson v. Buick Motor Co.  217 NY 382, 111 NE 1050
4. Caparo Industries Plc. v Dickman  2 AC 605
5. Sullivan v. Moody  HCA 59
6. Tame v. New South Wales  76 ALJR 1348
7. Blyth v. Birmingham Waterworks Co  11 Exch. 781
8. Cook v. Cook  115 CLR 199
9. Waverley Council v. Ferreira  NSWCA 418
10. Bolton v. Stone  AC 850
11. Paris v. Stepney Borough Council  AC 367
12. Barnett v Chelsea & Kensington Hospital  1 All ER 1068
13. Pickford v Imperial Chemical Industries  3 All ER 462
14. R. v. Goldhart  2 SCR 463
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