TORT LAW- PROBLEM QUESTION Essay Example | Topics and Well Written Essays - 2000 words

TORT LAW- PROBLEM QUESTION - Essay Example This was the original negligent act, so the analysis must stem from this. Below is the analysis of the situation, with a conclusion that outlines the probable outcome. Since this action is one that is based upon negligence, the scenario will be analyzed using the elements of negligence – duty, breach, causation and damages. Duty The first element that must be examined in this action, and any other negligence action, is duty. As far as duty goes, there does not need to be privity between the parties – anybody who might be harmed because of the actions of the person causing the negligence is owed a duty, according to Donoghue v. Stevenson.1 This is particularly true when the harm is foreseeable.2 Therefore, if a person is reasonable, and is driving reasonably, then the harm cannot be said to be foreseeable. This would negate a person's duty. Whereas, previously, in English law, there must be some kind of privity between the tortfeasor and the victim, in that the victim an d the tortfeasor must have had some kind of prior relationship, the landmark case of Donoghue v. Stevenson3 altered this. In Donoghue v. Stevenson, the plaintiff, Donoghue, became ill after drinking ginger beer which had a slug in it. The justice in Donoghue proclaimed that individuals owed a duty to anybody who might be affected by their actions. Another case, Caparo v. Dickman4 states that the duty of care can be explained threefold - that the harm was reasonably foreseeable, that there was a relationship of proximity between the tortfeasor and the victim, and that it would be fair, reasonable and just to impose liability. So, as in the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd5, the defendants were not held negligent for a fire which broke out on the water, even though they knew that there was oil slipping below the dock onto the water and the defendants could not reasonably foresee that water would ignite. Moreover, proximity is also an issue, becaus e the harm caused must be proximate to the tortfeasor - Palsgraf v. Long Island Railroad Co.,6 is a case where there was not proximate cause between negligence on one end and an unforseeable victim on the other. In that case, the defendant was helping a woman onto a train and this woman had fireworks which exploded. This caused scales to fall on a distant bystander, and the court decided that the distant bystander’s injuries were not proximately caused by the defendant’s actions. On this ground, the client would prevail, because he acted reasonably in his driving, therefore, there was not a duty to Sheila, as the injury was not foreseeable. On the other hand, since he left 10 minutes late,he might have had a duty if there was an issue to where her brain injuries would have occurred with a ten minute delay. Breach Breach is the next element that needs to be looked at. Again, foreseeability is the key to a breach of a duty. The injury that occurs must be foreseeable.7 If the injury that occurred was not foreseeable, then there would not be a breach of duty.8 Again, this would rest upon whether or not the person was acting