What is the tort of negligence?

A tort is a part of the law that covers civil acts such as defamation, trespassing and negligent acts. The act must be wrongful and must lead to the infringement of somebody's rights - it is punishable in some instances with damages. Tort law encompasses within its legal parameters the act of negligence, which is broadly defined as failing to take reasonable care for one's own actions, and in so doing, infringing or impairing the rights of another.

Technicalities

Feasibility of punishment There is much controversy over whether negligence should always be punished or whether it should be regarded as an 'unconscious' act, in the sense that the offender did not intend to cause harm, but caused it anyway. Car accidents The most obvious example of negligence is when a driver speeds recklessly and ends up killing somebody in what would amount to culpable homicide. The law is firm on these matters of negligence. For example, even though the driver may not have intended to kill anybody, he should have known that his actions could have had that consequence.

Objective and subjective tests

Wrongdoing The determination of negligence can rely on the result of objective and subjective tests. The objective test will prove whether there was any wrongdoing, and whether the accused's conduct falls short of what would be expected of a reasonable man. Once this has been established, the accused's personal knowledge, experience and abilities may be taken into account - this is a subjective test. Questions to be answered Before deciding on the accused's guilt, the court may ask several questions to help them make a verdict. They will want to know whether the person could have prevented the unlawful act in the first place. Could he have foreseen the damaging consequences of his act? Did the accused's conduct deviate from that of a reasonable man under the circumstances? Importantly, it will also be asked whether the law could have expected him to act differently.
Reasonable man
The reasonable man (or the average person) is a litmus test used by courts to help to determine the behaviour of an accused. In this respect, his personal qualities (such as whether he has a lack of knowledge in some respects or is superstitious or has a temper) are taken out of the equation.