C8: The Law of Torts

Question 1

What is Tort?

Answer 1

“Tort” refers to an act or omission committed by a defendant which causes harm to the plaintiff.

Question 2

Liability of tort is when:

Answer 2

1. Arises out of a relationship between the parties and

2. Involves a breach of duty imposed by law

Question 3

IMPT
Negligence
-
When is one party sued for negligence?

Answer 3

A plaintiff may sue a defendant for negligence if they suffered injury or damage has been done to their property as a result of the defendant’s failure to exercise reasonable care as the law required in the circumstances of the case.

Question 4

IMPT
Negligence
-
What are the 4 elements of negligence the plaintiff must prove?

Answer 4

1. Defendant owes them a duty of care
2. Defendant breached that duty
3. Defendant’s breach was the direct cause of the plaintiff’s loss or injury and;
4. the plaintiff’s loss or injury was not remote (foreseeable)

Question 5

IMPT
Negligence
-
EoN: 1. Duty of Care means…

Answer 5

A careless person only need to compensate a victim of their carelessness if they owe them a duty of care.

(doc owed is regardless of whether the person was near to or far away from the defendant)

Question 6

IMPT
Negligence
-
What is the test used for 1. Duty of Care?

Answer 6

Test of reasonable foreseeability/neighbour test.

It is someone whom the defendant can reasonably foresee getting injured (or damaged) by their act or omission.

Question 7

IMPT
Negligence
-
What is the two-stage test to factually determine 1. DoC in sg?

Answer 7

1. If there is a proximate r/s between the parties

2. If there are any policy considerations that would negate the finding of a DoC

Question 8

IMPT
Negligence
-
what is 2. Breach of Duty of Care

Answer 8

Where the defendant does not take reasonable steps to ensure that the standard of care required by the duty is complied with, the duty of care is breached.

Question 9

IMPT
Negligence
-
(2. Breach of DoC) Greater care should be taken by these 3 groups

Answer 9

1. Adults compared to minors
2. Able-bodied ppl compared to disabled ppl
3. Ppl with expert skill and knowledge compared to gen knowledge ppl

Question 10

IMPT
Negligence
-
Got 3. Breach that caused the damage - causation then how?

Answer 10

The plaintiff must prove that he has suffered actual physical injury, psychiatric injury, loss or damage as a direct result of the defendant’s breach.

Question 11

IMPT
Negligence
-
If the 4. Damage was not remote?

Answer 11

The defendant is not responsible for all the consequences that flow from their breach of duty.

The plaintiff must prove that the damage resulted directly from the defendant’s breach of DoC and also the type of damage was reasonably foreseeable. (not remote)

Question 12

IMPT
Negligence
-
Defences to negligence (opp of 4 EoNs)

Answer 12

1. Defendant did not owe DoC to plaintiff
2. Even if they owe DoC, they acted reasonably and did not breach DoC
3. the breach of DoC owed and breached was not the direct cause of the plaintiff’s loss
4. Defendant did owe DoC, breached and caused the plaintiff’s loss but the loss was REMOTE

Question 13

IMPT
Negligence
-
What is contributory negligence?

Answer 13

Contributory Negligence is when a person suffers damage or harm partly as a result of their own fault and partly due to the fault of another, the damages recoverable will be reduced according to their share of responsibility.

(when they contribute to the accident itself or the nature and extent of their own injuries)

Question 14

IMPT
Negligence
-
what is Voluntary Assumption of Risk (aka Volenti non fit injuria)?

Answer 14

A person who has voluntarily consented to a tort may not sue on it.

(e.g athletes playing sports)

Question 15

IMPT
Vicarious Liability
-
What is Vicarious Liability?

Answer 15

Vicarious Liability means liability for the tort of another person, which arises because theres exists a special relationship between these persons.

(e.g employer liable for tort of employee but not of their independent contractor)

Question 16

IMPT
Negligence
-

Question 17

IMPT
Vicarious Liability
-
Difference between employee and independent contractor?

Answer 17

An employer is liable for tort for their employee but not independent contractor because an employer retains the right to control how an employee carries our work and furthers interest of the business while an independent contract has the freedom to execute work without the employer directly profiting from it.

Question 18

IMPT
Vicarious Liability
-
Reasons for Vicarious Liability

Answer 18

As an employer profits forrm the work of their employee, the law considers it reasonable to hold the employer vicariously liable for their employee’s acts or omissions.

So the plaintiff can claim against the employer.

Question 19

IMPT
Vicarious Liability
-
Course of Employment

Answer 19

An employer is only vicarioulsy liable for the torts of their employee committed during the course of employment.

The employer will also be liable if the employee commits a wrongful act or omission which is ratified (condoned) by them.