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What does these terms mean in context of duty of care for law

  1. May 14, 2005 #1
    Foreseeability of damage
    Proximity of replationship
    Reasonableness or otherwise of imposing a duty

    what these mean, and is there a better way to say them?
     
  2. jcsd
  3. May 14, 2005 #2

    Andrew Mason

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    Volumes are written about these issues. In a nutshell:

    1. In tort or contract the wrongdoer is responsible for compensating the injured party for damages caused by the wrongful conduct. But there is a limit. The damages must be foreseeable. Whether something is foreseeable is a question for the trier of fact.

    2. The wrongdoer must cause the damage. If there are many contributing causes, the wrongdoer must be responsible for the proximate cause of the damage. This can be an issue where there is an intervening cause: eg. I cause a minor car accident which damages another person's car. While waiting for the police to arrive, someone robs the person and shoots him causing a spinal injury. I am not the proximate cause of the spinal injury.

    3. In order to be liable in law, there must be a legal duty that has been breached. One has a duty to take reasonable care so as not to injure others. Just what reasonable care means will depend on the circumstances. For example, a lawyer conducting a trial and a doctor conducting a surgery must meet the standard of care expected of a reasonably competent and prudent lawyer or surgeon. That does not necessarily mean the lawyer is responsible if he/she doesn't win the case due to a mistake made at trial. Careful and competent lawyers make errors all the time under the pressures of a trial. A surgeon who loses a patient due to an error that a careful and competent surgeon would not have made will be liable. But if the patient died from a known risk that the patient was fully informed about, and if the doctor took all reasonable precautions, the doctor will not be liable.

    4. Does this have something to do with physics?

    AM
     
  4. May 14, 2005 #3

    arildno

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    tort? TORT????
    That's a Norwegian word, not some weird English lawyer lingo..:grumpy:
     
  5. May 14, 2005 #4

    HallsofIvy

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    Are there a lot of weird English lawyers?
     
  6. May 14, 2005 #5

    Andrew Mason

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    I assume the Norwegians adopted it from the French - meaning, literally, a "wrong". In common law it refers to a wrong arising other than by contract - eg. negligence, assault, trespass, nuisance. There are alot of odd English legal expressions originating in French and Latin (almost always with improper pronounciations). English common law uses alot of french terms because of the influence of Norman kings. The English Common Law is pretty much an original concept though, just like their measuring units.

    AM
     
  7. May 14, 2005 #6

    arildno

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    Nope, I think "tort" entered French through the Viking ancestors of the Normans.

    I'm not sure, though..

    HallsofIvy:
    Since most of the Norwegian lawyers I know of use a weird form of Norwegian, I just naturally assumed that English lawyers made a similar abuse of their own language.


    EDIT:
    I've just checked in one dictionary, where the Latin word "tortus" (meaning the same thing) is regarded as the root.
    Thus, the concept is probably derived from Roman Law, being adopted by the Germanic tribes later on.
     
    Last edited: May 14, 2005
  8. May 14, 2005 #7

    Andrew Mason

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    I think the word 'tort' comes from the Latin word "torquere" which means "twisted", as in 'torque' (there is a connection to physics, after all). Just how that word evolved from Latin to the French is a little unclear, but it comes from the french not the Vikings.

    Mind you, the Vikings contributed to the concept of tort, but I don't think they went so far as to make 'trespass, assault and general pillaging actionable civil wrongs.

    AM
     
  9. May 14, 2005 #8

    arildno

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    In my dictionary, "tortus" is said to be the "participle"(??) of the verb "torquere" you mentioned, that is, with a LITERAL meaning of being twisted. But from what I can gather, the judicial meaning of the word "tortus" as in "tort" may well have developed during the Roman Law period rather than in the Norman period of England (my book doesn't state this explicitly though).

    One indicator of this, is that direct FRENCH influence on Norwegian is extremely slight; yet "tort" in Norwegian has practically the same judicial meaning in Norwegian as in English.
    Thus, it seems most probable to me that the concept originated in Roman Law, and was transmitted northwards through the Germanic tribes in between.
    That is, the Franks/French passed it over to the English after some time; some other route, probably through Saxons and Jutes led the word up to Norway.

    Probably, tomes have already been written on these issues; I haven't read those, though..

    So, just to make it clear: I retract my Viking origin theory..

    And, by the way, it was good of you to spot the "torque"-connection OP's thread had with physics...:wink:
     
    Last edited: May 14, 2005
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