Ch. 1: Intro to Tort Flashcards
What are the aims of Tort?
- Balance Competing Interests
* What rights a person has
* What rights a person does not have to do
* When two people have the right to something (right to free
press and right to a good name; which prevails) - Compensate a person who has suffered injury as a result of the unlawful behaviour of another.
What is Liability
Liability means a person is responsible in law for the injury caused to another. If a person is liable to another, he will usually have to pay damages to compensate the plaintiff for the injury caused. Liability under the law of tort usually arises where a person is at fault. However, fault is not synonymous with liability.
Liability for Omissions or Failure to Act
Generally, the common law does not impose liability for omissions or “nonfeasance” (see decision of the House of Lords in Stovin v. Wise [1996] AC 923). There is no general duty to assist someone in danger, for example.
(Page 39).
Where Liability for Omissions Arises for a relationship: what is the relevant case law?
Where a relationship gives rise to a duty to act, e.g., the relationship between parent and child or between employer and employee, or where the defendant assumes responsibility for the plaintiff.
Barrett v. Ministry of Defence [1995] 1 WLR 1217 two soldiers brought their intoxicated friend to his bed and the court found they has assumed responsibility for him; whereas no duty would have been owed if they had not intervened to assist him. In the circumstances, the plaintiff’s colleagues should have got medical assistance for him, having assumed an obligation toward him.
(Page 39)
Three Instances where Liability to for Failure to Act Arises
- Where the defendant has created the danger, he is under a duty to prevent harm to the plaintiff.
- Where a danger exists, and the defendant has some control over it (even though he did not create the danger) he may have a duty to warn others of the danger and failure to warn may give rise to liability.
- Where a relationship gives rise to a duty to act, e.g., the relationship between parent and child or between employer and employee, or where the defendant assumes responsibility for the plaintiff.
Where Liability for Omissions Arises for creation of the danger: what is the relevant case law?
Rivtow Marine Ltd v. Washington Iron Works (1973) 40 DLR (3d) 530 it was held once a producer became aware of a defect in its product it had a duty to warn customers who had already bought the product of the danger.
(Page 40).
Where liability for omission occurs due to control over the danger: what is the relevant case law?
For example, in Curley v. Mannion [1965] IR 543 the Supreme Court held the driver of car owed a duty to other road users to control his child who was a passenger in the car and who opened the door, injuring a cyclist.
(Page 40).
What are some valuable legislative Acts that have added to liability in tort outside of common law?
- Occupiers Liability Act
- Defamation Act 2009
- Liability for Defective Products Act 1991
- Safety, Health and Welfare at Work At 2005
In exceptional cases the courts may be prepared to find that a statute intended to create a remedy in damages for breach of statutory duty in the absence of an express provision to that effect. Three conditions must be satisfied. What are they?
- the statute must have intended to prevent the type of injury suffered by the plaintiff.
- the plaintiff must be a member of the class of persons for whose benefit the statute was enacted, i.e., that the statute was enacted to protect the type of person in the plaintiff’s situation, not for the benefit of the public generally.
- the statute must not be adequately enforced by other remedies.
What Irish Case Law refers to where courts can find that Statute inteded to create a remedy in damages in breach of statutory duty in absence of an express provision to that fact?
Moyne v. Londonderry Port and Harbour Commissioners [1986] IR 299 Costello J (as he then was) in the High Court held that the duties imposed on the defendant under certain Acts were not for the benefit of the general public, and, therefore, the plaintiffs had standing to sue for damages for breach of statutory duty.
What is Vicarious Liability?
The concept of vicarious liability describes a situation when one person is held responsible for the actions of another. Vicarious liability is a form of strict or no-fault liability as it is the person for whom the defendant is responsible who is at fault, rather than the actual defendant who is being sued.
Employer Vicarious Liability Case Law
In the case of Farry v. Great Northern Railway Company [1898] 2 IR 352 an employee of the defendant train company detained the plaintiff to force him to give up his ticket. The company was held responsible for false imprisonment as, although the employee was wrong to detain the passenger, he did so in the belief it was part of his job.
Where is an employer not held vicariously liable for the actions of his employee?
if the employee commits an act which is clearly not part of his employment no liability will attach to the employer.
Case Law for vicarious liability of an employer for his employee.
For example, in the case of Irving v. Post Office [1987] IRLR 289 a postman wrote an offensive racist remark on a letter. He was held not to be acting in the course of his employment.
The Road Traffic Act, 1961 imposes vicarious liability on the owners of cars. Section 118 of the Act provides that:
Where a person uses a mechanically propelled vehicle with the consent of the owner of the vehicle the user shall for the purpose of determining liability … be deemed to use the vehicle as the employee of the owner.
