Explain and analyse the factors the courts use to determine whether the defendant is in breach of the duty of care in negligence, including the subjective factors which are taken into account. (FOR UK COURT SYSTEM 800-1000 WORDS)
If, in case the negligence, if a person makes the other person suffer loss or any kind of injury, then the victim can seek legal action against the responsible person. UK legislation provides the sufferer with a chance to claim the duty of care. The law states that a person may owe the duty of care to another person. By taking the duty, they ensure that they will not provide any potential harm or threat. If, in any case, this duty is breached, then the tortfeasor can be subjected to a legal proceeding.
The need for the duty of care arises whenever a company or an individual agrees to perform a task that can potentially affect the other individual in any way, either physically or economically. It could be a trivial task like driving or could range to a more significant scope, such as giving a company or individual a reliant economic suggestion. The liability of negligency is only applied to those cases in which individuals have previously set the duty of care for that particular situation.
The duty of care is a broad term which can be applied to various scenarios; before setting and claiming the duty of care, both the victim and the defender should understand the potential impact of each factor. For the tasks for which there is a predefined set of regulations defined by the UK legislation, there is no need to set the duty of care individually priorly. Like the traffic rules are preset, and all the drivers are obliged to follow them. Likewise, for setting a nuclear plant, the SOP for safeguarding the community is already predefined. So the manufacturers are bound to follow these; the negligence of the laws if result in potential damage to a person or community, then the manufacturer will be liable to punishment. The duty of care highly depends upon another factor. That is, the relationship between the parties, like the UK government, has set a few obligations for the parents to safeguard the children[1].
Similarly, the teachers, employees, and doctors also have a set of codes of conduct to follow. UK government also has a personal injury, which defines the degree of care the party is bound to give to the visitor depending upon their status. The status of visitors defined by the legislation is the trespasser, invitees, and licenses. All three visitors have different levels of duty of care set by the legislation. There are a few domains in which the scope of the burden of responsibility is not predefined in the legislation. The individuals are expected to perform tasks vigilantly up to the general standard of care.
The duty of care also differs along with the potential type of harm provided. The duty of responsibility for saving someone from psychiatric injury is entirely different from physical damage. The reason behind this is the complexity of the factors and the distinctive control in psychiatric harm. Claiming someone is responsible for creating a traumatizing situation depends more on the endurance and mental power of the victim rather than the defendant’s fault[2]. The persons who are not physically harmed are not liable to psychiatric damage until they fulfil various other legislative criteria set by the UK government. Depending upon the degree they are classified as primary and secondary victims, both have a different set of protocols to be executed. The damage done to an individual can be purely economic, as most often, these financial losses are not anticipated. Hence, the courts face numerous limitations in putting the liability, and also, these losses are unrecoverable most of the time. The negligence of the duty of care is not applied to individuals or corporates but is also potentially applicable to public bodies. However, due to the policy difference, the organizations owe a different level of duty of care[3].
As the duty of care has various aspects, so do the courts have to see the different aspects while addressing such cases. The first and foremost thing is to determine the appropriate extent of the application of this duty of care. After this, the plentiful should prove in front of the court how the defendant has not acted up to the standard. The other fundamental aspect of court focusses is whether the defendant could anticipate the potential threat and has not taken any measures in advance. The extent of the liability also depends significantly on the scope of the anticipation of the loss. The other potential question asked by the court is the availability of any other alternative the defendant could take to avoid the potential threat. In the aspect of all these factors, the court decides the extent of liability of negligence.
Critically analyse the impact of the reforms brought in by the Defamation Act 2013 and assess the impact they have on who can bring an action for defamation.
It is often challenging to maintain the apt balance between the freedom of the press and the individual’s freedom of expression, along with the reputation right of the citizens. Specifically, the contemporary era is of the digital world, and it is quite common to publish anything anonymously, and the circulation of the news is also at a rapid pace. This delicate equation is often hard to balance, but with the right mix of legislation and law enforcement, this balance can be achieved. The UK has addressed these concerns with the introduction of the Defamation Act 2013. The reason for the introduction of this law was not only to reform the existing law but also to ensure a balance between the reputation right and freedom of expression rights in this digital era. The previous acts in this regard were focused on saving the reputations by forbidding disparaging statements, but every law yields consequences either in favour or against a particular cohort. So the previous law protected the upper class having power from scrutiny. This formed the basis of the introduction of the defamation act 2013. Because previously, UK courts struggled with maintaining the balance, but it could not be achieved without the comprehensive defamation act. The increased social media progression was posing severe hurdles.
Before introducing the defamation act of 2013, the UK government was relying on the defamation Act of 1952 and the defamation act of 1996. Both the previous actions were focused on that the public estimation of the applicant should be significantly lowered after the defamation case has proceeded. But now, the newer focus is that as a burden of proof, the applicant must have to prove in which way and to what extent the defamation has brought harm to him. If the slander has been brought to the corporate bodies, then they must claim with facts and figures how this defame brought them the financial loss. The second new addition is that the new act incorporates the website operators too. The website operators are bound to abide by the rules and regulations set by the legislation, and the claimants can directly handle the defamation by dealing with the people who are doing the defamation. Another significant change that has been made in this act is that the UK government is not held accountable for carrying out the legal proceeding for torts who are not UK nationals or citizens of EU member states. So the UK court is under no obligation to hear the case until it is proven that the UK court is the most suitable platform for carrying out the legal proceeding against the tortfeasor. Since social media is the mass media, so for saving the legislation from the mess, a single-time publication rule was also inculcated in the act. This rule puts a time bar of one year whenever a defaming story is published; the period starts from the publishing date, as it is impractical to carry out the cautions each time the story is copied, edited, or repeated[4].
Section 5 and section 6 of the defamation act of 1952 carried out some significant changes in the newer act of 2013. Previously part 5 showcased the common law defence for justifying, but the 2013 act replaced it with the case based on substantial truth. Moreover, the bill also promotes freedom of speech by emphasizing that true statements should be made. “Fair comment” in section 6 was altered by the defence of an honest opinion. Thus if the defendant argues that the comment was based on his realistic experience, then the court can rely on this section.
The act has brought severe impacts in different aspects. The burden of proof from the applicant that the defaming has made him/her suffer cruelly has significantly dropped the number of claims. So this requirement has filtered the number of cases significantly, and now only those cases are brought who are the potential sufferers. Likewise, the corporate setup has to bear the concrete evidence of the financial losses suffered to proceed with the hearing of the case. As this burden has bound the applicants; but it has given leverage to the publishing cohort as they can publish about companies more with little threat of being sued by them
In a nutshell, the defamation act of 2013 has aptly codified the previous defamation laws. It has made it crystal clear both for the UK courts and the general public when the defamation is severe enough to take legal action against it. Thus it has settled the initial debate up to a satisfactory extent, that it has provided the freedom of expression to the public. Still, if it exaggerates to a lethal level which brings harm to any individual or a company, then the UK legislation will be bound to take legal action.