Common Law Tort Essay Example | Topics and Well Written Essays - 2750 words

Common Law Tort - Essay Example Fairness (natural justice) was restored to common law by the caselaw of Ridge vs. Baldwin3. (W)hat the requirements of fairness demand from any body, domestic or administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision making body, the kind of decision it has to make and the statutory or other framework in which it operates.4 Negligence, definition and elements. At common law, there is liability for damage caused by unintentional but negligent acts or omissions. "Negligence is 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."6 In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. (1934)7 According to Denning L.J.11, all the elements are really the same thing. What is being required by court as a matter of social policy is risk because when P is injured because of risk created by D, the latter (D) ought to be required by law to compensate the injured party (P). In effect, duty, proximate cause and remoteness continually run into each other; they are simply ways of looking at the same thing. Two of the elements are factual, namely cause - in - fact and damage, while duty of care, standard of care and remoteness are questions of law. Causa Sine Qua Non. Upon P is laid the burden of establishing each and every element in the required quantum of evidence. P is required to prove that the breach of which he complains caused the damage for which he claims12 and he does so by proving that "but for" the breach of duty he would not have suffered the damage. He must prove such causation in both factual and legal aspects. The determination of factual causation comes before that of legal causation. The causal connection between the act or omission constituting the breach of duty and the damage as a fact must be proven to exist and the "But For" test determines and establishes that an event constituting the negligence and another constituting the damage are in fact linked. In multiple possible causes, the claimant must prove that the defendant's breach of duty caused