Contract Law and the Law of Negligence Essay Example | Topics and Well Written Essays - 2000 words

Contract Law and the Law of Negligence - Essay Example As such, every individual is under a duty of care towards others to employ reasonable care, in order to circumvent causing injury to them or their possessions (Judicial Education Center, 2013). Alec has a duty towards Kelly, just like that towards any other person on the walkway. In some instances, the act or omission of the defendant could cause damage to the claimant. However, the claimant may not have any action, because the affected interest may not be provided with the protection of the law. This situation is termed as harm without legal wrong or damnum sine injuria (Cooke, 2011, p. 5). Alec’s rash driving resulting in damage to Kelly’s shop attracts the provisions of the law of negligence. A defendant could be made liable for committing a tort, if the act had been intentional. This usually takes place in crime. Liability is also attached to the defendant, if the act was negligent, although unintentional. This is because the defendant had failed to fulfil his duty of care towards the petitioner (Judicial Education Center, 2013). In our case, Alec has failed to perform his duty towards Kelly, although it was unintentional. In Page v Smith, Lord Hope described primary victims as individuals who had undergone psychiatric injury. Such injury should have been the outcome of the fear or distress resulting from the accident that had taken place due to the negligence of the defendant or its immediate aftermath (Turton, 2008, p. 1014). Kelly suffered mental distress, the next day after the incident. She cannot take recourse under the category of primary victim for psychiatric injury. Whether there was a breach of duty From the legal perspective, negligence is the breach of a duty to ensure care, while committing an act. It is also the failure to act in the manner that a prudent or reasonable individual would have acted under circumstances that were similar. Such action or failure must be the proximate cause for the injury caused, if the plaintiff is t o recover damages from the defendant. Some of the defences to a negligence action are, the assumption of risk or injury by the plaintiff, or the injury was due to the plaintiff’s negligence (Columbia Electronic Encyclopedia, 2011).A contractual relationship can generate an obligation to act with care. An instance of this is the duty of care assumed by a carrier to protect passengers and goods from injury or damage. In addition, the law presupposes that every person, in the ordinary course of conduct, is under a duty of care to abstain from injuring others. This duty, in every non – contractual situation, requires every individual to act as a reasonable person. If an injury occurs, despite such care being exercised, or due to circumstances that are beyond human control, then no compensation can be claimed. The doctrine of strict liability renders entities engaged in certain services and trades liable, even if the conduct is not negligent (Columbia Electronic Encyclopedi a, 2011). While deciding whether a breach of duty had taken place, the courts would evaluate the conduct of the defendant, with reference to what a reasonable person would have done under similar circumstances (Tingle, 2002, p. 1129) In Blyth v Birmingham Waterworks Co, it was opined that negligence was failure to do a thing, which a reasonable man would have done, in accordance with the considerations that normally regulate human conduct (Tingle, 2002, p. 1129). In our case, Alec, due to coming late, attempted to quickly cross