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Running Head: OBJECTIVITY VS SUBJECTIVITY
Objectivity Vs Subjectivity in Law 1
Running Head: OBJECTIVITY VS SUBJECTIVITY
Objectivity Vs. Subjectivity
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Objectivity Vs. Subjectivity
Within the context of law, a vital concept associated to the element of negligence is that when a plaintiff fails to provide proof for any single element of their claim, the judge will not rule within his or her favour on the entire tort claim. Holding an assumption that a particular Tort has five elements, all the elements have to be proven. Despite the fact that common law jurisdictions differ on how to classify the elements of negligence, every negligence case has to establish duty, breach, causation (remoteness of loss) and damage (Geistfeld, 2011, p. 142). However, this depends on the definition of the tort based on the court dealing with the case.
Under the tort law, proximate cause refers to a situation where more than a single factor presents itself, which further causes harm and injury. Torts arising from negligence can be because of civil wrongdoing that arises when an individual behaves in a negligent manner. Within this context, a factor of whether or not harm was causes to an individual is not considered.
Negligence as a Tort means that there is a legal breach owed to the plaintiff by the defendant further resulting in damage to the claimant, without the defendant’s desire. The duty element is evident, as the defendant owes a legal duty of providing care to the plaintiff. Breach comes about because of the defendant's failure to provide the duty of care, which results in causation. When a duty of care is breached because of negligence, an individual has the ability to go to court since the tort negligence resulted in the breach that is recognized by the society. Going to court provides the claimant with a Damages Remedy that compensates them for the loss incurred. Under causation, damage is caused to the plaintiff because of the breach arising from the defendant’s negligence (Geistfeld, 201, p. 130-132).
Judges do not theoretically apply an objective test to disguise a subjective value judgement in claims related to negligence. Reason being, tort law was designed with an aim of dealing with individual harm. This is supported by the fact that judges select relevant factors and attribute to their relative weight during the process of determining liability. This provides all the elements of the negligence of tort to be judged based on the value. In addition, a judge will provide the defendant with a chance to provide his or her proof. This provides the basis of the burden of proof where the defendant is required to succeed in order to make a successful claim. The plaintiff is provided with a chance of establishing a legal duty of care. Moreover, he or she has to provide proof based on the balance of probabilities that the claimant actually had the duty of care breached. The plaintiff has also to prove to the court that because of the breach, the plaintiff suffered some form of loss. A legal duty exists only in cases where a reasonable individual has the ability of foreseeing that harm may arise from the conduct under question (Geistfeld, 2011, p. 140). There are several problems associated with tort such as, general tests determining the existence of duties and the policy decisions, which are not inclusive of liability. Changes in policy offer a reflection of the changes that the society undergoes.
Breach of Duty
Under the tort law, once the defendant owes a duty to the plaintiff, the matter has to be settled without taking into consideration whether the duty was breached or not. It is evident from this perspective that the test on the tort is both objective and subjective. In this case, the...