Exam (elaborations)
unit 7 - Aspects of Tort task A and B
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Assignment 1Dear Louise,
The main goal of tort law is to establish liability for the defendant and to compensate
accident victims, in this case Louise, in order to provide some justice to the claimant
and to punish the perpetrator in order to deter future reckless behaviour. A fault in
tort law refers to the legal responsibility for the victim's injuries or property loss. To
make a valid claim, the defendant's fault must be established. To demonstrate the
severity of the harm and how it may affect the victim moving forward, medical
documentation may be requested.
The goal of deterrence is to convey to others that engaging in certain behaviours is
improper and could result in punishment. However, it might be argued that people
are not discouraged by money per se, but rather by the fact that, for instance, a
motorist may be deterred more by the prospect of driving infractions and points than
by the actual compensation.
Receiving recompense for their loss can help a successful claimant bring about
some measure of justice. A severely injured claimant who has lost a limb, however,
would not believe that their loss could be adequately compensated for by the amount
of money or that they have received justice. Because of certain circumstances, you
have suffered psychiatric harm. Accordingly, even if they offered to make up for the
harm, it might not be enough to completely make you as you were before the
incident.
If the defendant is found to be at fault, they will be penalised by being forced to
compensate the claimant for their damages. However, the defendant's insurers will
typically pay the cost for their recompense.
The Caparo v. Dickman case established the duty of care (1990). A three-part test
can be used to evaluate if a duty of care is due. Included in this are the following: 1.
Could a reasonable person conclude that the claimant will suffer some injury that is
fairly foreseeable? 2. Is the distance between the parties close enough? 3. Is
imposing a responsibility of care just, fair, and reasonable?
The objective test, often known as the reasonable person test, is then used to
determine if a duty has been breached. Since Samantha was the driver in this
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,instance, she had a responsibility to drive reasonably and safely while on the road.
She therefore had a responsibility to take care of people around her.
An award of damages for a breach often serves to make up for the injured party's
losses. The basic rule is that damages are aimed to place the claimant in the same
situation as if the contract had been completed. Damages are often given for loss of
anticipation (loss of a bargain) or loss of reliance (wasted expenditure). Damage
consists of two distinct components, both of which must be established. Causation
comes first. This stipulates that the harm in the case must have been brought on by
the duty violation. Remoteness is the following damage component. This determines
if the damage is reasonably foreseeable. The Wagon Mound serves as an example
of this (1961). Damages for negligence may be awarded if a case has these
components.
In your case Louise, negligence is present since Samantha was texting whilst driving
on a busy street when she lost control of her car and crashed into a pillar. This is
negligent as you cannot be on your phone no matter what whilst driving and can be
serious harm to everyone around and damage that Samantha can cause on the
road. The negligent behaviour caused Andrew to fall off his ladder as it was jolted
due to the crash which caused him serious injuries. ‘But for’ Samantha crashing
Andrew would have not fallen off and caused him injuries which would further not
have caused you to gain psychiatric injury.
Psychiatric injury
A psychiatric injury occurs when you have a mental trauma as a result of an
accident, a shocking incident, or other stressful circumstance. Psychiatric injuries
include conditions like post-traumatic stress disorder, depression, and severe
anxiety. In your situation, Louise, it is clear that there was mental trauma because
you had extreme psychological distress for the next six months, making it possible to
make a claim for psychiatric injury. However, in order to guarantee a claim—which
we will detail in this letter—all other pertinent conditions must also be present.
"Shock," in the context of this cause of action, involves the immediate realisation by
sight or sound of a dreadful incident, which forcefully agitates the mind, according to
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, Lord Ackner in Alcock v. Chief Constable of South Yorkshire. It does not yet
encompass mental illnesses brought on by a series of slower, more continuous
nerve attacks over time. This eliminates people who experience psychiatric harm as
a result of the prolonged task of caring for a family member who has sustained
serious injuries as a result of the defendant's negligence. In Louise's situation, shock
is evident because you saw your partner covered in blood and had broken one arm
and a leg. It follows that the "sudden appreciation by sight of a horrible event" is
there and likely to cause psychiatric injury
The claimant must demonstrate that the shock resulted in a positive psychiatric
illness as defined in McLoughlin v. O'Brian if the shock did not result in a physical
injury or illness. Clinical depression, personality changes, and post-traumatic stress
disorder are a few instances of these. This does not apply to those who, regardless
of how severe the shock, are simply bothered by it; in those cases, psychiatric
disorder must be acknowledged, and supporting medical documentation will be
required. Therefore, claimants who can demonstrate such harm may only make a
negligence claim if they can show that the defendant owed them a duty of care with
respect to their psychiatric injury and that the defendant's carelessness resulted in
the harm. Louise, since you have not suffered any physical wounds, the next thing
we must consider is whether you have suffered any psychiatric injuries that have
resulted in psychological suffering. Pure shock has triggered a physiological damage
response. As you can see, Louise, you didn't only get upset from the shock. We can
move on to the next component since the fact that it has led to your psychiatric
suffering indicates that there is still a claim for psychiatric injury.
The mental injury must then be demonstrated. The following is required: supported
by medical documentation, sufficiently enough to have a negative impact on the
claimant beyond simple shock or sadness, and brought on by an unexpected event a
long-term injury, such as one that keeps the claimant from working. For Louise, the
occurrence that resulted in her boyfriend's injury served as the catalyst for her
mental illness, which can be proven.
A claimant must first demonstrate the following in order to be successful in making a
psychiatric harm claim: There was an accident or incident where someone was
careless and caused the injury; they have experienced a recognised mental injury;
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