Chapter 8: The Law of torts Flashcards
What is a tort?
A tort is a civil wrong other than a breach of contract.
A tort can also be a breach of contract and a crime
To succeed in an action of negligence the claimant must show:
He was owed a duty of care
The duty of care was breached
Actual damage was caused in fact
Actual damage was caused in law
Duty of care
We all owe a duty of care to our …
neighbour
Neighbour
A neighbour is someone who is so closely and directly affected by an action that a reasonable person ought reasonably to have him in his contemplation at the time of acting.
Negligence
The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or something which a prudent and reasonable man would not do’.
Factors to be considered when deciding if a duty of care has been breached?
-Professional skills
-Probability of injury
-Seriousness of the risk
-Practicality and cost
-Common practice and custom
-Social Benefit
Damage in fact
But for test
but-for test
If the result would not have happened but for certain event, then that event is a cause; if it would happen anyway, the event is not a cause
Damage in fact
res ipsa loquitur
But consider res ipsa loquitur (the thing speaks for itself)
When so obviously negligence, up the defendant to show not being negligent.
Reverse the burden of proof
Damage in law
To be successful the claimant must …
Claimant must show that damage flowed naturally from the breach. Cannot be too remote from the breach.
The Skull principle / egg shell skull
Under this principle you must take your victim as you find him.
Vicarious liability
Employer may be liable for the torts of an employee, though not of a contractor.
Wrongful act must take in the course of employee performing their contractual obligations.
Employee may still be personally liable, but the employer will probably have more assets to pay damages
Defences to actions in negligence
Volenti non fit injuria
To a willing party no wrong is done
Victim consents to injury eg. Boxer suffering damage as a result of a far punch
Volenti defence unlikely to apply if person seeking to rely on it has acted negligently
Defences to actions in negligence
Novus Actus Intervenies
New Act Intervenes
is an act or event that breaks the chain between the wrong committed by the tortfeasor and the damage incurred by the claimant
Partial defence to negligence
Contributory negligence
May reduce damages but it does not excuse the defendant from their negligent act
Defences to negligence
Illegality
Actions based on illegal act will fail
Cannot be any negligence
