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Law of Tort

Negligence is a tort which depends on the existence of a duty of care due to performances owed by one person to another. Tort of negligence is a failure to exercise reasonable care, is also to avoid reasonably foreseeable damage to people or property. A person who claims a negligent case to a defendant who is on duty of care proves that the defendant failed in doing something that a reasonable person would not have done or omitted to do.

The duty of care depends on the circumstances to the risk involved, the consequences of the breach and the standard of care that the defendant has undertaken to exercise. For the tort of negligence to arise, four elements must be considered. These include that the defendant must owe the plaintiff a duty of care which is consequently breached. As a result, the plaintiff must have suffered injuries and damages due to the defendant’s breach of duty of care. (Cooke, P., Cooke, J. 2005).

 Therefore negligence is a legal concept that is used by a plaintiff to acquire compensation for damages suffered from the defendant. Negligent behavior towards other gives the affected the right to be compensated for the harm caused. Negligence at

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common law is classified as one of the aspect of the law of liability. Negligence should be avoided by the defendant so that there is no risk, or harmful act to the plaintiff. Plaintiff who is damaged should seek for compensation by claiming for a negligence action in a court of law.

The plaintiff must further prove that the defendant’s negligence actions contributed to cause harm to the plaintiff. In a court of law, the plaintiff must prove that the defendant owed him a duty of care, which was breached due to negligence. The plaintiff should be in a position to show that the damage and injuries he suffered resulted from the defendant’s breach of duty of care. The tort of negligence is seen as unreasonable running risk and harm to other people. (Marsh, S.B., Soulby, J. 2001).

Shardae is a canoeing instructor who specializes in beginners classes for the over fifties. She took a group of four participants to a local lake to practice capsize drill. As an instructor Shardae uses an experimental technique which is unknown to the participants. The technique she used has been favored by some experts who claim it is safer, particularly to the learners, than the established methods.

However other experienced canoeists argue that there is no clear evidence to support this claim and they also believe that it can be more dangerous than the established method. The national association of canoeists (NAC) code of practice recommends the established method, but does not mention the new technique. She had tried out this new technique with beginners on a few previous occasions without mishap.

Shardae successfully carried out capsize drill on three students who completed the practice successfully. However, the fourth, Naz, stuck his foot in the canoe. Naz began to struggle violently in the canoe and Gwyn, one of the three members who was a strong swimmer dived in the water to help Naz. As Gwyn reached Naz’s canoe, Naz accidentally struck Gwyn in the face, breaking his jaw. Despite this, Gwyn managed to free Naz, but because he was still struggling hard, Naz broke his ankle in the process.

Naz and Gwyn can claim in the tort of negligence against Shardae in the sense that she exposed them to unreasonable risk and harm by using a dangerous experimental technique during their practice. As an instructor, Shardae owes her students duty of care and has the responsibility of protecting them from any form of risk or harm. Shardae has proven that she owes Gwyn and Naz a duty of care but has breached it by using a dangerous technique which has not been proven by the National Association of Canoeists (NAC). (McBride, N. J., Bagshaw, R. 2005).

Shardae has exposed her students to unreasonable risk and danger by using this experimental technique on them without informing them. Shardae has also ignored the fact that some experienced canoeists have argued that the experimental technique could be more dangerous than established method. This is evidence that has breached a duty of care by using a dangerous technique on her students without informing them. If Shardae did not use this experimental technique Naz and Gwyn could not have suffered the damages.

Therefore they can prove in court of law that the injuries they suffered resulted from Shardae’s breach of duty of care. According to the court of law, Shardae has breached the duty of care by exposing the participants to reasonable harm and risks, which a reasonable person could not do. Gwyn and Naz must prove that Shardae owed them a duty of care which she then breached due to negligence and caused them harm and damage. Gwyn and Naz must also prove that the injuries and damages they suffered during the practice resulted from Shardae’s negligence actions for them to be compensated in a court of law.

The participants were not aware of the experimental new technique they were being exposed to and thus this enough evidence to prove that the instructor breached her duty of care. Shardae’s students are aged above fifty years old meaning that they are weak and physically unable to handle water accidents. Shardae ignored this fact and exposed the students to circumstances which a reasonable person would not have exposed elderly people to. By doing this, Shardae has proven that she did not care for the interests and safety of her students.

According to the court of law, a reasonable person would not expose other people to such danger and risks as Shardae did. It can be argued that Shardae used the experimental technique on her students out of selfish interests without considering the consequences the technique would have on the elderly students. As an instructor, Shardae is charged with the responsibility of protecting her students from dangers and risks associated with canoeing.

She is also charged with the responsibility of informing the students of dangers and risks associated with every technique. Shardae however, did not follow these rules and regulations to ensure the safety of her students. I would advice Gwyn and Naz to claim in the tort of negligence against Shardae because there is enough evidence showing a breach of duty of care by her. (Stuhmcke, A. 2001).

Defenses that Shardae may raise

A successful defense absolves the defendant from full or partial liability for damages. A part from prove there was no breach of duty of care, there are certain principles used in defense against the tort of negligence. Shardae can defend herself using the law which states that, to the willing, no injury is done. She can prove this by showing that all the participants were willing to use the experiment technique and did not show any form of resistance. According to the court of law, Gwyn is not in a position to sue Shardae because he willingly went into the water to save Naz.

Therefore the injuries he suffered were not directly caused by Shardae’s negligence. Shardae can also use the law of contributory negligence to defend herself on the claims filed against her by Naz and Gwyn. (Ridley, J. R., Channing, J. 2003).Gwyn dived into the water without thinking of the consequences that could have occurred. Shardae can therefore use Gwyn’s negligence behavour as a form of her defense. Damages and injuries suffered by Gwyn and Naz did not result from Shardaes negligence behaviour, but rather as a result of their own irresponsible behavior.

Shardae could raise a defense by proving that Naz and Gwyn were engaging in inappropriate acts when they suffered the damages and injuries. She could defend herself by proving that Gwyn was not in a position to lay a claim against her because Gwyn did not suffer any accident in the canoe. Gwyn had successfully finished his practice without any form of injuries, but he broke his jaw when Naz struck him in the face. According to a court of law, Gwyn can only claim for a tort of negligence against Shardae if the damages he suffered resulted directly from Shardae’s breach of duty of care.

As students, the four participants should have researched on what techniques were best for themselves but instead they didn’t. They followed Shardae’s instructions and used the experimental technique without accessing the dangers and risks associated with it. Shardae can defend herself by showing that the experimental technique she used had been tested and recommended by experts who claimed that the technique was safer that the established method. Shardae had also used the same technique with other participants who completed the practice without facing any harm and danger.

She even used the experimental technique herself and successfully completed the practice. She could explain that Naz broke his ankle due to his irresponsible behaviour because he could have waited for help rather than acting violently to free himself. This way Naz is not in a position to sue Sharadae since the injuries suffered could not have been caused by the technique used but rather by his irresponsible actions. Therefore Naz and Gwyn cannot claim in the tort of negligence against Shardae.

References

Cooke, P., Cooke, J. (2005). Law of Tort.  Pearson Longman.

Marsh, S.B., Soulby, J. (2001). Business Law. Nelson Thornes.

McBride, N. J., Bagshaw, R. (2005). Tort Law. Longman.

Ridley, J. R., Channing, J. (2003). Safety at Work. Elsevier.

Stuhmcke, A. (2001). Essential Tort Law. Routledge Cavendish.

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