Chapter 2: Law of Torts Flashcards
What is a Tort?
A tort is a breach of duty, or a “wrong”.
What is an Action in Tort?
Ensuing legal action from a tortious act.
What is the full definition of Tort?
Tortious liability rises from the breach of a duty primarily fixed by the law; such duty towards persons generally and its breach is redressable by an action for unliquidated damages.
What type of law deals with Tort?
Civil Law.
Crime is dealt with by Criminal Law.
What is the purpose of legal action under Tort?
To provide compensation to the victim harmed by the tortious act.
What is the most common remedy under Common Law
Damages are the main remedy in the form of financial compensation.
What are Unliquified / Unspecified Damages?
These are damages that are not fixed, they will be decided by the court depending on the seriousness of the injury.
What are the 4 different Classifications of Tort?
Defamation (Libel and Slander): protects your reputation
Trespass: protects against deliberate physical harm
Private Nuisance / Trespass to Land: protects your interest in the land you occupy
Breach of Copyright: protects your intellectual property
What does it mean if a Tort can be actionable in itself (including an example)?
Typically, an action in tort only usually succeeds if the claimant has suffered and injury or loss.
However there are instances where the claimant doesn’t have to prove a loss, only that a tort (a wrong) has been committed.
The tort of trespass is an example of this, because your land doesn’t have to have been damaged for someone to have trespassed on it.
What is “Intentional Tort” (including an example)?
This means the act has been intentionally committed.
Deceit is an intentional tort as you are deliberately misleading someone.
What is “Negligence Tort”
An act doesn’t have to be intentional for it to be negligent.
However, there is no liability for purely accidental actions by a defendant.
What are “Strict Liabilities”?
You can still be held liable if your actions are neither intentional or negligent (no-fault liability).
Rylands v Fletcher is an example of this.
Explain the Rylands v Fletcher case?
1868.
The defendant contracted out the building of a reservoir on his land.
Once filled, the reservoir flooded a neighbours (the claimant) mine shaft.
Whilst the defendant wasn’t negligent himself, he was still held liable for the damages under the principle of “strict liabilities”.
Explain why the Law of Torts doesn’t care about the motive of an action?
Someone who acts with the best intentions can still be held liable if the ultimate action is unlawful.
List the 3 reasons when “Malice” is relevant in Tort:
When malice forms part of the tort: malicious falsehood
Tort of Defamation: certain defences are not available if an act was malicious
Tort of Nuisance: some actions will be deemed unreasonable if motivated by malice / improper motive.
What 3 things must Trespass be?
Direct: no liability unless the harm is caused directly
Intentional: no liability if the act is purely accidental
Actionable per se: the claimant doesn’t have to prove they have suffered a loss in order to succeed
What are the 3 main forms of Trespass?
Trespass to the person.
Trespass to goods.
Trespass to land.
What are the 3 types of Trespass to the Person?
Assault: any act that causes the claimant to fear an attack on their person.
Battery: hostile application of physical force towards the claimant.
False Imprisonment: total bodily restraint is wrongly applied to the claimant.
What did the Tuberville v Savage case show?
In 1669.
That certain words spoken can cancel out what would have been assault.
When does Trespass to Goods happen?
Occurs when the defendant directly and intentionally interferes with someone else’s stuff.
What is Conversion as an element of Trespass to Goods?
Occurs when the defendant deliberately deals with the goods of someone which would have been inconsistent with that persons right.
EG: If you unknowingly receive goods which belong to another person (such as a stolen car), you are obligated to give it back to the person if they come looking for it. If you don’t you can be sued under conversion.
What did the 1977 Torts (Interference with Goods Act) introduce?
It introduced the phrase “wrongful interference with goods” to the Act and simplified it.
What is Trespass to Land?
Direct interference with land which is in the possession of another.
There is no need to prove damages for an action to be brought about, otherwise it would be near impossible for purple to protect private property from trespassers.
What 3 forms does Trespass to Land take?
Unlawful entry onto someone’s land.
Unlawfully remaining on someones land.
Unlawfully placing or throwing any material object onto someones land.
What is “Trespass Ab Initio”
Occurs when someone enters land lawfully, but then abuses their right to be there.
It is said they have then trespassed “ab initio” - from the beginning.
Is there cover for Trespass under Insurance?
If someone has deliberately trespassed, there would be no cover as insurance rely on a loss being fortuitous and accidental.
Also, no liability coverage as the policy is only triggered by loss or damage and trespass doesn’t have to include these things.
What is Negligence?
Negligence is the most important tort today.
Negligence is the failure to take care when the law demands care should be taken.
What are the 3 essential parts of Negligence?
- Defendant owes a duty of care to the claimant
- Breach of said duty by the defendant
- Damage to claimant as a result of said breach / negligent act by the defendant
What was the Donoghue v Stevenson case?
Donoghue had a snail at the bottom of a ginger beer that was purchased for her by a friend.
She couldn’t sue the cafe owner, as didn’t buy the drink herself and it wasn’t the cafe owners fault.
She then sued the manufacturer and won as the manufacturer had a duty of care towards her as the end consumer.
What is the “Neighbour Principle”?
First explained in the Donoghue v Stevenson case.
Love thy neighbour and don’t cause them harm. As you don’t know who your neighbour may be, you must take care to avoid acts or omissions which could potentially cause harm to them.
Your “neighbour” is anyone who would be closely and directly affected by your actions.
It spurred on the Tort of Negligence as the law no longer was rooted in precedence as to what constituted a “duty” situation.
When does a breach in duty occur?
Occurs when the defendant fails to do (or not to do) what a reasonable man would do in a situation.
Also when/if the defendant fails to take reasonable precautions.
How does the court decide if a breach has occurred?
It looks at:
- the magnitude of the risk involved in the defendants actions
- the ease at which the risk could have been reduced or eliminated
- the current state of specialist knowledge on the subject at hand
Explain Causation and Remoteness of Damage
A defendant is not liable for every single loss in connection with their wrongful act, as the law puts a reasonable limit of the defendants responsibility.
Prior to 1961, the defendant was liable for any injury or damage directly caused by their negligence.
Explain the Overseas Tankship v Morts Dock and Engineering Co Ltd as it relates to remoteness of damage:
It fond that damage would be considered “too remote” if it was not reasonably foreseeable.
Men employed by the defendant spilled fuel into the Sydney Harbour which then drifted down to the claimants wharf / factory where it ignited with welding sparks and caused the water to catch alight.
Although the fire occurred as a result of the defendants error, the court found the damage was too remote as it was not reasonably foreseeable at the time.
Explain the old common law rule of “you take your victim as you find him”:
Damage is not reasonably foreseeable if it results due to some pre-existing weakness or defect of which the defendant is not aware.
As shown in the 1961 Smith v Leech Brain and Co Ltd case.
Explain the 1961 Smith v Leech Brain and Co Ltd case:
Worker had a pre-malignant tumour that was activated when struck with some molten metal due to the negligence of a fellow employee. The worker died.
Although this was not foreseeable, the employer was found fully liable.
This is an exception to the rule.
Explain the chain of causation?
Where the chain of causation leading from the defendants negligent act is broken by a new intervening case, the defendant is not liable for the subsequent damage.
