Chapter 8 - The law of tort (Part 2) Flashcards
What are the 3 defences to negligence?
- One of the elements in negligence is not present
- Contributory negligence
- Voluntary Assumption of Risk
Explain on “One of the elements in negligence is not present”
If the defendant is able to prove that, one or more of the four elements of negligence did not exist, he would have a good defence to negligence. The defendant may claim that:
(a) he did not owe a duty of care to the plaintiff; or
(b) even if he owed a duty of care, he had acted reasonably and had not breached the duty of care which he owed; or
(c) even if he owed a duty of care and breached it, his breach was not the direct cause of the plaintiff’s loss; or
(d) even if he owed a duty of care, breached it and caused the plaintiff’s loss, the plaintiff’s loss was remote.
Explain on “Contributory negligence”
Where a person suffers damage or harm partly as a result of his own fault and partly due to the fault of another, the damages recoverable will be reduced according to his share of responsibility.
Contributory negligence is where the plaintiff by his conduct, contributed to the accident itself or contributed to the nature and extent of his injuries.
To prove contributory negligence, it is not necessary for the defendant to show that the plaintiff owed him a duty of care, but only that the plaintiff failed to take reasonable care for his own safety.
What are some examples of “Contributory negligence” ?
Examples:
a. failed to use the pedestrian crossing or overhead bridge, while crossing the road; or
b. crossed the road when the traffic signal (i.e. green man) was not in his favour or suddenly ran across the road; or
c. failed to wear safety gear/s even though these safety gear/s have been given to him.
Explain on “Voluntary Assumption of Risk”
“No injury can be done to a willing person”. A person who has voluntarily consented to a tort may not sue on it.
Participants in sports voluntarily undertake the lawful risks and hazards inherent in the game.
On the same principle, spectators voluntarily undertake the lawful risks in attending sporting events.
What is vicarious liability?
The expression “vicarious liability” means liability for the tort of another person. This arises because there exists a special relationship between these persons.
The most common example of vicarious liability in tort is the vicarious liability of an employer, for the tort of his employee.
What is the difference between an employee and an Independent Contractor?
An employer is liable for the tort of his
employee but not for the tort of his independent contractor.
An independent contractor is a someone who undertakes to produce a given result, and who in the actual execution of the work, is not under the control of the person for whom he does it.
An employee on the other hand is someone whom the employer normally retains the right to control of not only what the employee does but also the way he does it.
What is the reason for vicarious liability?
An employer profits from the work of his employee. The law considers it reasonable to hold him vicariously liable for his employee’s acts or omissions as the employee is engaged in furthering his interests.
This enables the plaintiff to claim against the employer, who would likely be more able than his employee to pay any damages which the court may award.
It should be noted that the employee is not excused from liability but that the plaintiff has a choice to sue the employer instead of the employee, if he so wishes.
When can an employer be sue for vicarious liability?
An employer is only vicariously liable for the torts of his
employee which are committed in the course of employment.
The employer may nevertheless be vicariously liable if an employee discharges his duties in an improper way or in a way expressly forbidden by his employer and, in so doing, commits a tort. This is because the employee was acting in the course of employment when he committed the tort.
The employer will also be liable if the employee commits a wrongful act or omission which is ratified by him, i.e. the employer gives his consent or condones the act of the employee after the employee has committed the act or failed to perform act
What does the plaintiff has to prove in order to succeed in a claim against an employer for vicarious liability?
The plaintiff has to prove that a tort has been committed by an employee of the employer in the course of employment.
