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Is it Fair to Make Someone Who Harms Another Pay Them Compensation?

Posted on:4/29/2012
The short answer is: yes, at least when by their fault they have caused physical harm to another's person or property. Fault, as in criminal law, includes intention and negligence. But by what standard does personal injury law judge whether someone has been negligent?


 

On the whole personal injury law adopts the standard of the average, reasonably competent person. It is negligent not to be as careful to avoid harm to others as this imaginary person would be. So a driver on the highway must come up to the ordinary standard of driving skill even if he happens to be particularly clumsy.

 

A medical practitioner must keep in mind recent developments in medicine even he happens to have a poor memory or be close to retirement. The standard is objective. It is not morally wrong to be clumsy or to have a poor memory, though it is certainly a defect. But someone who chooses to drive or practice medicine is treated as negligent if they do not come up to the required standard for driving or practising medicine.

 

On the other hand a person who gives first aid in an emergency, when no doctor was available, would only be expected to do their best in the circumstances. The standard is then subjective. (But what about someone who claims to be expert in first aid?). In judging whether a defendant was negligent, systems of personal injury law apply various mixes of the objective and subjective standards of conduct.

 

On the one hand they want to hold defendants liable only if they were really at fault; on the other hand it would be unfair to the plaintiff to make his claim to compensation depend on the defendant's particular makeup or temperament. There has here, as often in the law, to be a compromise between conflicting aims.
  
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