A4.1 Explain the principles of common law

Question 1

Following an accident at work, what are the two ways a person may decide to sue the person responsible for harm (in civil court)

Answer 1

• The tort of negligence

- The tort of a breach of statutory duty

Question 2

What is a tort?

Answer 2

• A civil wrong

Question 3

What is the principle of a tort of negligence?

Answer 3

• Duty of care is closely allied to tort of negligence.
  If by carelessness by act or omission, a person injures another, they are likely to be liable for negligence.
• negligence implies a failure to do something that would be expected in the circumstances (omission) or a careless behavior (act)
• it is a failure to discharge a duty of reasonable care

Question 4

What are the main elements to prove in order to sue successfully for negligence?

Answer 4

• that the defendant was under a duty of care to the claimant
• that the duty had been breach through negligence (the act/omission fell below the standard expected)
• as a result of the breach, the claimant suffered harm
• the type of damage would have been reasonably foreseeable as a result of the negligent act

Question 5

What is the duty of care owed by designers, manufacturers and suppliers?

Answer 5

• Any person injured due to the defective product can sue.
• the manufacturer owes a duty of care under tort
• the vendor may be liable in tort if they are under a duty to inspect the goods and fail to do so

for a claimant to be successful in a civil action in tort, they must prove that the manufacturer did not take reasonable care during the process over which they had control. Basically, the manufacturer was negligent.

Question 6

What is the duty of car owed by contractor to client (and visa versa)

Answer 6

if a client appoints a contractor to do work, then each party owes a duty of care to the other.

Question 7

What is the three-stage test when discussing the extent of someone’s duty?

Answer 7

• was it reasonably foreseeable?
• what was the proximity? - refers to the closeness between the two parties in time and space
• is it fair, just and reasonable to impose a duty?

note:
it is important to limit the duty of care to avoid ‘opening the floodgates’ and creating a virtually unlimited liability.

Question 8

What are the duties owed by employer to employees and others?

Answer 8

• called the ‘employers liability’
• the duty owed under the law of tort is to act reasonably in the given circumstances, not perfectly.

Common law requires that all employers provide and maintain:

• a safe place of work and safe means of access and egress
• safe systems for doing the work
• competent and safety conscious personnel
• appropriate supervision, information, instruction and training
• safe appliances, equipment and plant for doing the work

Question 9

What is a tortfeasor?

Answer 9

the ‘wrongdoer’ who has failed in their duty of care

Question 10

What are the damages for which the tortfeasor is liable?

Answer 10

• physical injury
• psychological harm
• property damage
• medical expenses
• loss of income

Question 11

What are the factors that affect whether the tortfeasor is liable?

Answer 11

• The harm must be of a foreseeable kind
• The date of the knowledge or risk is a factor
  (Eg. asbestos) - many organizations were unaware of the asbestos risk.
• Vicarious liability

an employer may also be liable for the negligent acts (or omissions) of employees
one reason for this is because this enables the injured person to get compensation, rather than sue an employee who may have no financial resources and thus not worth suing.