Chapter 4 - Tort Law

Question 1

What are the main differences between Tort law and Criminal law?

Answer 1

Tort law - compensate victims who have suffered injury or wrong as a result of the actions of an individual or organization. The purpose of tort law is NOT to punish those responsible for the injury or wrong. Under tort law the action is between two individuals or entities.

Criminal law - hold citizens accountable to each other under a society’s criminal code which spells out how the citizens of that society should treat each other. Under criminal law the action is between the state and an individual or entity.

Question 2

State the three requirements for a successful action under tort law.

Answer 2

1. The defendant owed the plaintiff a duty of care.
2. The defendant breached that duty of care.
3. The defendant’s conduct caused injury to the plaintiff

Question 3

What is the difference between public nuisance and private nuisance?

Answer 3

Public nuisance is an act or omission that affects the lives, safety or conduct of the public or a section of the public. A public nuisance may also be a criminal offence. An example of a public nuisance is blocking a public highway.

Private nuisance may be injury to the property of someone (for example damage to a building) or the interference to the enjoyment of that property (for example excessive noise).

Question 4

List and describe the defences against a tort of defamation.

Answer 4

1. Proof that the statements made are true.
2. Fair comment which covers areas such as political commentary, book or play reviews and critiques.
3. Absolute privilege which allows statements to be made in certain contexts without fear of a defamation suit. For example, members of parliament can make comments about other members within the confines of the parliament building.
4. Qualified privilege which arises in situation such as a supervisor giving a report to management regarding an employee’s job performance.

Question 5

What is negligence and what must a plaintiff substantiate in order to win a case of negligence?

Answer 5

Negligence occurs when one party acts in a manner that is unreasonable and below expected standards and it results in harm to another party or their property.

The plaintiff must substantiate the same three elements as with other tort cases:
1. The defendant owed the plaintiff a duty of care.
2. The defendant breached that duty of care.
3. The defendant’s conduct caused injury to the plaintiff.

Question 6

List and describe the facts that are considered by the court when it is reviewing the required standard of care.

Answer 6

1. How likely was any damage to occur? Was the chance of damage high or low? If high, then a higher standard of care is expected. If low, then a lower standard of care might be acceptable.
2. How serious could the damage be? Is it likely that if something goes wrong, someone would just be inconvenienced or could they be badly hurt?
3. Who is likely to be affected? If children or invalids are affected, a much higher standard of care would be expected than if healthy adults were involved.

Question 7

To what does the thin skull rule pertain?

Answer 7

This rule states that one takes the victim as they are found. In other words, the defendant cannot argue that the plaintiff suffered a brain injury due to a pre-existing condition or state, such as a skull that is thinner than average, and therefore the defendant is not fully responsible for all of the damage that ensued.

Question 8

Which case is most often cited for the tort of product liability and why is it important?

Answer 8

Donoghue v. Stevenson.
This ruling is important because it set the precedent that manufacturers of products owe a duty of care to persons other than the actual persons who purchased the product.

Question 9

What precedent was set by the Hedley Byrne v. Heller decision?

Answer 9

A negligently made statement which caused the plaintiff to suffer only pure economic loss was deemed cause for recovery of damages.

Question 10

How does a court normally decide on the level of standard of care required from a professional in the performance of their duties?

Answer 10

A reasonable level of care and skill expected of a professional of normal competence.
1. established professional standards of the professional organization
2. situational factors that may require a higher standard of care than that determined by the professional standards.