Sunday, February 26, 2012

Research Paper on Negligence

Research Paper on Negligence

Introduction
The following research paper will deal with such often-applied concepts in the international law as negligence, tort, and duty of care that are tightly interconnected. In the paper the mentioned concepts will be specifically related to the legal system of the State of Kuwait. We will also present the applicability of these concepts in the stated country. This topic was chosen by our group because recently “negligence” is noticed to cause many problems in our world, particularly in Kuwait. Another issue relating to such problems is that often no one claims responsibility for the cases of negligence, thus our paper will describe notions of negligence and show how its consequences cannot be overlooked.

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The following paper will be divided into two parts. In the first, bigger, part we would like to describe the concept of negligence in details and explore the factors behind the decision-making on negligence responsibility in courts. Then, we will cover such topics as unintentional torts and the consequences of breaking them as well as the establishment of the duty of care. We would also like to touch upon how the reasonable person standard is defined. In the second part we will deal mainly with applicability of negligence, tort and duty of are concepts in Kuwait that is a sovereign Arab emirate on the coast of the Persian Gulf, enclosed by Saudi Arabia to the south and Iraq to the north and west. Moreover, we will concentrate of investigating whether there is awareness about the consequences of negligence in Kuwait, if not how it be can injected into the society.

More and more today we suffer from the mere negligence of others. Thus, what negligence is, in everyday life, is clear to everyone. Lower we will talk about negligence in the legal context. Shortly, it can be said that negligence is failure to use reasonable care, simply doing something that a reasonably cautious person would not do, or the failure to do something which a rationally cautious person would do under resembling circumstances. The above description can be elaborated describing negligence as an act that would not be done in the community by an ordinary reasonable member of the community. Furthermore, negligence is a legal source of damage if it directly in continuous sequence produces damage. This means that it can be rationally said that if not because of negligence, the loss, injury or damage would not have occurred (Definition of Negligence, Chapter 3 on Negligence).

When it comes to negligence claims, the plaintiff (the party injured) tries to show that the defendant (the party supposedly at fault) had caused the following four factors to occurr. First of all, the defendant owed a legal duty of care to the plaintiff. Secondly, the defendant under particular circumstances failed to fulfill that legal duty through conduct. Thirdly, the defendant caused an accident or injury involving the plaintiff. Fourthly, the defendant harmed or injured him/her as a result of his/her actions. Thus, if the above four criteria can be marked as present the plaintiff (also the claimant) can issue a legal claim against the defendant and receive the appropriate remuneration. This basis for assessing and determining fault is utilized in most disputes involving an accident or injury, during informal settlement talks and up through a trial in a personal injury lawsuit (Chapter 3 on Negligence).

In order to illustrate how these four elements that contribute to the claim, we find it useful to present a simple example. Let us assume that Kristin speeds up through the junction, even though the red light is on and hits the car that is driven by Michel.  Michel is obeying the rules, he has the green light, thus the right of way. It is clear that the injury that Michel suffered was caused by Kristin, thus Michel has a right to issue a personal injury dispute based on negligence. However, in order to prove that Kristin is at fault for her negligence plaintiff Michel will need to show that the four factors are present. To begin with, Michel will have to point out that Kristin, as a driver, has a legal duty to drive with reasonable caution under the circumstances. Thus, by speeding through the intersection and running the red light, Kristin breached her legal duty. Then, when failing to fulfill her legal duty to drive with reasonable care under the circumstances, Kristin caused her car to crash into Michel had suffered property damage and physical injury.

In continuation of our topic, we would like to say that additionally, it must be mentioned that negligence may be a legal cause of damage, event when it takes place in combination with a natural cause, or some other cause if the other cause occurs at the same time as the negligence and if the negligence contributes considerably to creating such harm. When it comes to supposedly defective, unreasonably dangerous products, the manufacturer may be also liable, even though he/she had exercised all reasonable care in the design, manufacture and sale of the product under discussion.  However, a manufacturer is not officially accountable to a person injured by the product (Rowland, Christian). He/she is certainly not an underwriter that nobody will get hurt from using its product, and there is no duty upon the manufacturer to produce a product that is absolutely accident-proof. What the manufacturer is required to do, is to make a product which is free from defective and unreasonably dangerous conditions. Thus, only those products that are not n their nature defective or unreasonably dangerous, can be claimed from the manufacturer (Zweigert, Koetz, pp. 573-576). 

Legally, negligence may be divided into various degrees. To begin with, there is ordinary negligence that is simply a desire, or accidental action, of ordinary diligence.  On the other hand, gross negligence is the result of the individuals’ actions that shows a considerable lack of concern for what his/her actions will result into (Larson). When it comes to classifying negligence in order to evaluate the fault, negligence can be categorized as contributory negligence and pure comparative negligence. In case of contributory negligence a person who is brining the law suit is denied of recovery of any kind if the person was responsible for the accident in any, even slightest, way. As a consequence, if during the course of inspection the jury detects that the plaintiff is even one percent at fault for causing his own injuries, he/she may not recover any suffered damages. On the other hand, in a pure comparative negligence system, the jury understands that in an accident both parties contribute to the total responsibility, thus the jury assumes that the fault must be allocated between the parties (Zweigert, Koetzt, pp. 595-597). This means that the judge decides how much fault should be billed to each party responsible for an accident, and then, in the view of that, apportions the amount of damages. For instance, if a plaintiff is said to be forty percent at fault for causing his/her own injuries, then the defendant or defendants will only have to reimburse sixty percent of the plaintiff's damages (Negligence).

The next concept we would like to cover in our paper is torts. Firstly, it must be said that tort is an illegal civil wrong-doing, intentional or accidental from which injury occurs to another party. Torts contain all kinds of negligence cases in addition to intentional immoral and illegal actions which effect in damage and impairment. Therefore, as we see, tort law covers a vast part of the jurisdiction, thus it is one of the major areas of law (Currie, Cameron, p 334). Moreover, most of the law suits brought to court today are ones based on the problems concerning this category of law (Currie, Cameron, p. 334).

There are several types of torts, hereby we would like to talk about intentional and unintentional torts.  Unintentional torts are simply accidents that occur without underlying desire of one party to hurt another. Unintentional torts usually happen because one was not being careful. Thus, we see that an unintentional tort is very close in meaning to negligence, though, as it can be clear from the definitions earlier in the paper, we see that negligence cases tend to be lighter in scope. When it comes to identifying one’s fault for the unintentional tort, the individual can be either strictly liable or partly liable (Rowland, Christian). Intentional torts are actions that purposefully cause damage, these torts can be also crimes, such as assault, attack, rape, battery, murder, deception, and infringe on property. Intentional torts are always the basis for lawsuit for damages by the injured party (the plaintiff).

Above we have discussed that there are injuring actions that occur due to an essential desire of one party to impair another party, while there also those that occur because of negligence. One may suggest, that the actions, that happen because of one’s negligence should not be considered illegal. One may suggest that accidents cannot form a basis for a law suit because they do not prove one party to have an underlying desire to harm another party. However, we know that such point of view is unacceptable, because the law says we all have a duty of care. The duty of care rule is that we must take reasonable care not to cause projected destruction to other people or their property. The duty of care concept has as a minimum two purposes. The first purpose is to offer a general outline for the enormous diversity of circumstances in which liability may come to pass. The second purpose is one of limitation that is setting the borders within which one person could be liable to another for the consequences of hasty conduct. Duty of care may be considered to be a formalization of the public agreement, a set of particular unspoken responsibilities, held by individuals towards others within taken society. It is not a prerequisite that a duty of care should be defined by law, although this concept is often developed through the jurisprudence of common law (Denton).
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they hold on to a reasonable and logical standard of care when performing any acts that could predictable hurt others. It is the first element that must be established to proceed with an action in negligence. The plaintiff must be able to articulate a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability in tort (Denton). The duty of care may be imposed by operation of law between parties with no current direct relationship but eventually become connected because of the accident, as defined by common law (meaning case law) (Perry, 711-713).

In this part of the paper, we would like to relate the above concepts to the state of Kuwait. To begin with, we would like to provide some information about the legal system of Kuwait. The State of Kuwait, as many other Muslim countries, follows the civil law system based on various jurisdictions. To begin with Kuwait’s law system is based on the Islamic Sharia law that is very important in personal matters. Moreover, the legal system of Kuwait is a mixture of British common law, French civil law and Egyptian law. In its legislation Kuwait law can be related to the Tort Law of United Arab Emirates, thus lower we would use Law Of Tort in the UAE Document to present the notion.

When it comes to Kuwait, in that state the “tort” law is defined the way this concept is defined all over the world, as a civil wrong-doing that results from an act or oversight that has caused wound or loss to a person or to property. An action is regarded to be a tort, not considering whether or not the act or neglect constitutes a crime or is caused by a breach of contract. If a person is proved to commit a tort, he/she should compensate the injured party by paying damages for the loss caused. Such damages should be paid both when personal injury or damage to property has occurred (Law of Tort in the UAE).

It is important to point out that in order to prove that the person is responsible for a tort (liable for it), it is not required to prove that this person has intended to cause loss. Thus, according to this article of the Tort Law, it is sufficient for the plaintiff (the party that is claiming compensation from the defendant) to only show that the person who committed the tort, has violated a legal obligation to “take reasonable care, whether intentionally or not” (Law of Tort in the UAE).

The last point about the Tort Law that we would like to cover as for the State of Kuwait is the accession of damages. In Kuwait both physical and moral damages should be claimed by the victim.  In case the loss suffered by the plaintiff is minor and “the item or the affected part of the item is replaceable”, the defendant will be liable for “the cost of restoring the item to its previous condition or for the replacement value of the item”. Though, provided the damage cannot be paid for only part of the damaged good, the defendant should pay the whole price.  Finally, any claim in tort is time barred three years from the date the plaintiff suffered the loss(Law of Tort in the UAE).

People living in Kuwait have the same attitude to negligence and torts as people all over the world. The people are aware what actions could be considered to be torts. Though, the people’s awareness on this matter should be increased. This is because many would still consider negligence, an act that was committed unintentionally, to be something that would not require punishment.  As a consequence, it should be widely advertised that negligence is strictly punished, to raise the awareness of people and to warn them about the consequences of their negligent actions.

In conclusion we would like to say, that the Tort Law in Kuwait goes hand in hand with the Tort Law of other countries. We consider that it is very important that more awareness is generated around the Tort and Negligence Laws within people of all countries all over the world.
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1 comment:

  1. according to this article of the Tort Law, it is sufficient for the plaintiff (the party that is claiming compensation from the defendant) to only show that the person who committed the tort, Thesis Proofreading services

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