Chapter 8 - The law of tort (Part 1)

Question 1

Difference between Tort & Contract?

Answer 1

In a contract the parties enter into a legally binding agreement. When the defendant breaches the contract and the plaintiff suffers loss, the plaintiff can sue the defendant for monetary compensation for breach of contract.

Tort, however, is independent of contract. No agreement is involved. The defendant infringes the plaintiff’s rights and the plaintiff suffers harm. The plaintiff can sue the defendant for monetary compensation.

Therefore a person may find himself liable to another for the tort of negligence or defamation even though there is no contract between them.

Question 2

Difference between Tort & Criminal Law?

Answer 2

In criminal law, motive is relevant. For example if a person is charged with the offence of theft, it has to be proven that there is a criminal intent to steal.

In tort, motive however is generally not relevant. For example in a motor vehicle accident, the accident occurred because of the negligence of one or both of the drivers. Both drivers of the cars do not intend for the accident to occur.

Question 3

What is Defamation? Does plaintiff need to prove if the statement is true/untrue?

Answer 3

Defamation is a statement published by the defendant to a third party that tends to injure the plaintiff’s reputation or causes him to be shunned or avoided by ordinary members of society.

In defamation, the plaintiff does not have to prove that the statement is untrue because the law presumes the falsehood of the statement in favor of the plaintiff.

The statement must also have the effect of injuring the plaintiff’s reputation.

Question 4

Why is the law of defamation important?

Answer 4

Protects a person’s or a business’s good name and reputation.

Individuals : The loss of reputation would affect the person’s standing in society, which could also lead to
monetary loss.

Business: Loss of business reputation and goodwill would affect customer confidence and patronage,
leading to a loss of revenue and profits.

Question 5

What are the 4 elements of defamation and explain them.

Answer 5

1) the defendant had made a defamatory statement referring (whether directly or indirectly) to the plaintiff;

2) the defendant had published the defamatory
statement to a third party;

3) the plaintiff’s reputation had been lowered in the
estimation of right-thinking members of society
generally; or

4) the defamatory statement had caused the plaintiff to be shunned or avoided.

Question 6

What are the two forms of defamation?

Answer 6

1) Slander - the defamation is made orally or by
gestures;

2) Libel - made in permanent form, i.e. in writing
or drawing, cartoon, caricatures etc.

Libel - social media, email, WhatsApp, twitter, Facebook

Question 7

What are the remedies for defamation and is there a difference for libel and slander?

Answer 7

If the plaintiff succeeds in suing for defamation, the plaintiff can seek:

1. monetary compensation in the form of damages from the defendant; and /or
2. non-monetary compensation in the form of a court
   injunction to stop the defendant from further publishing
   the defamatory statement.

Slander
If a plaintiff sues for slander, the plaintiff must show that he has suffered special damage as a result of the slander in order to get monetary compensation. The expression “special damage” refers to loss that is quantifiable in monetary terms,

For example, the plaintiff is able to prove that he lost his job (and hence his income) as a result of the defamatory statement.

Libel
In libel, the plaintiff may succeed in his suit without proving that he had suffered special damage.

Question 8

What are 2 exceptions to prove special damages in slander under the defamation Act?

Answer 8

(a) alleges unchastity or adultery to any woman or girl; or
(b) is calculated to disparage(belittle) the plaintiff in any office, profession, calling, trade or business held or carried on by him.

Question 9

What are the 4 defenses available to the defendant under defamation?

Answer 9

If a person is sued for defamation, he may in his defense raise one or more of the following arguments:

(a) Justification - The defendant has to prove that the words published are true in substance.

(b) Fair comment - The defendant has to prove that the
statement is a matter of public interest, is an
expression of opinion based on correct facts and
must not be motivated by malice.

(c) Absolute privilege - The law regards free expression to be more important than the protection of a person’s
reputation in certain situations. No action lies for
defamation is available if it is made in:

(i) Parliament;
(ii) Parliamentary papers;
(iii) the course of State communications;
(iv) the course of judicial proceedings; and
(v) newspaper reports of judicial proceedings,
provided that they are fair and accurate.

(d) Qualified privilege - This defence is available in several situations including one where a defamatory statement is made under a legal, moral or social duty to another who has an interest to receive it. The statement must not be published more widely than necessary, and it must not be motivated by malice.

An example is giving a reference in relation to employment.

Question 10

What is mitigation under defamation?

Answer 10

The defendant may also plead mitigating factors, such as expeditiously making an offer of apology, expressing regret, and retracting or correcting the falsehood communicated.

Mitigation is not a defence as it does not generally affect the defendant’s liability to the plaintiff for the defamation. But it may reduce the amount of damages payable by the defendant.

Question 11

What is negligence? When can a plaintiff sue for negligence?

Answer 11

Negligence is the a duty imposed to take reasonable care so as not to cause harm to another person or his property.

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

The damage could be caused by a negligent act (the
defendant did something) or omission (the defendant failed to do what he should have done).

Question 12

What are the 4 elements a plaintiff must prove in order to succeed in an action for negligence?

Answer 12

(a) The defendant owed him a duty of care
(b) The defendant breached that duty;
(c) The defendant’s breach was the direct cause of the plaintiff’s loss or injury; and
(d) The plaintiff’s loss or injury was not remote (that
means the loss or injury was foreseeable).

Question 13

Explain more on the 1st element “The defendant owed him a duty of care”

Answer 13

A careless person need only compensate a
victim of his carelessness, if he owes that victim a duty of care.

The test used is that of “reasonable foreseeability” or the “neighbor test.” This test is to determine whether the defendant is liable to the victim.

Test of Reasonable Foreseeability or Neighbour Test

A duty of care is owed by a defendant to his “neighbour”.

A “neighbour” is someone whom the defendant can reasonably foresee will be injured by his act or omission.

In other words, if a reasonable man standing in the position of the defendant would have forseen injury to the plaintiff by his conduct, the plaintiff would be regarded as the defendant’s neighbour, and the defendant would owe the plaintiff a duty of care.

Question 14

Example of a case on reasonable foreseeability and duty of care?

Answer 14

Donoghue v Stevenson

Bottle of ginger beer. The plaintiff drank most of the drink but then noticed the decomposed remains of a snail at the bottom of the bottle.

Question 15

How to determine if there is a duty of care owned?

Answer 15

Step 1. Test of Reasonable Foreseeability or Neighbour Test (Whether it was reasonably foreseeable that the
defendant’s actions would cause harm to the plaintiff.)

Step 2.
1) Whether there is a proximate (i.e. there is a close and direct)relationship between the parties whereby the parties ought to consider each other when performing their respective parts in the contract; and if so

(ii) whether there are any policy considerations that
would negate the finding of a duty of care.

Question 16

Explain more on the 2nd element “The defendant breached the duty of care”

Answer 16

Where the defendant does not take reasonable steps to ensure that the standard of care required by the duty is complied with, he is said to have breached his duty of care. The standard required is that of a “reasonable man”.

If a person has done what he could do under the circumstances arguably, he would not be regarded as having breached the duty of care.

However, certain factors may cause the courts to hold certain persons to different standards, for example, greater care should be taken
by:

(a) adults as compared to minors;
(b) physically fit persons as compared to persons who are disabled (e.g. blind persons);
(c) people with expert skill and knowledge as compared to a layman.

Question 17

Explain more on the 3rd element “The defendant’s breach was the direct cause of plaintiff’s loss or injury”

Answer 17

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 18

Explain more on the 3rd element “The plaintiff’s loss or injury was not remote (that means the loss or injury was foreseeable).”

Answer 18

The plaintiff must not only prove that the damage resulted directly from the defendant’s breach of
duty of care but also that the type damage was reasonably foreseeable (i.e. that the damage was not remote).

This means that the court must decide whether a reasonable man standing in the position of the defendant would have foreseen the type of damage would result from his conduct. The question must be answered in the affirmative. If not, the law regards the damage as being “remote”.