Tort Of Negligence Analysis

A Tort is a wrong at civil law which focuses on situation where a duty of care (responsibility to avoid causing harm to another person by your act) is owned, but no contract may necessarily exist between the parties i.e. person driving a car on road own a duty of care toward others. Notes

Tort of Negligence:

Ewan Macintyre stated that “negligence is the most important tort, covering an enormous number of situations. To a certain extent, negligence fills the gaps left by the more strictly defined torts” book amna

The elements that are needed by the claimant to establish the tort of negligence are:

• Duty of care

• Breaching that duty of care

• Damages caused by that breach

Difference between physical and psychiatric injury:

• Physical injury is easy to prove or claim because it is visible where as psychiatric injury is difficult to prove or claim because it is in the persons mind.

• The courts must apply caution when dealing with psychiatric injury as it can be forged very easily due to being related to a person’s psychological state which is not easy to prove whereas physical injury is visible and tests can prove if a person has suffered an injury or if it has been forged.

• The law is lenient for physical injury but it is strict for psychiatric injury.

• Physical injury claims are objective where as psychiatric injury claims are subjective

• The law is lenient in terms of decision making in physical injury but it is harsh and unfair in psychiatric injury.

• Physical injury is evidence based where as psychiatric injury relies on medical field.

• Physical injury involves one party primary victim where as psychiatric injury involves primary and secondary victim.

Duty of care

Law of torts

Neighbor test, Donoghue v Steveson (1932)

H...

... middle of paper ...

...sions are in the favor of claimant most of the time. In Physical injury we have one primary victim which can also be a eggshell victim. The standard of eggshell victim is good because it protects the disabled persons as they need special duty of care. On the other hand in psychiatric injury the claims are very hard to make and the law is also very strict in it. The psychiatric injury is not foreseeable and you have everything in your brain and its brain you know least about it and this is the reason behind harsh decisions in psychiatric injury. In psychiatric injury we have primary and secondary victim but secondary victim faces very hard times then primary victim. It is clear from English law that the claims for grief or sorrow cause by person death are not awarded. In secondary victim there must be proximity of relationship between claimant and those who injured.