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
Defences to negligence
Public policy
The courts are unwilling to ‘open the floodgates’ to a huge number of actions.
Anyone who is too remote from a tortious act is unable to succeed in action for negligence.
Defences to negligence
Inevitable accidends
An accident that could not have been avoided by the exercise of reasonable skill and care
Defences to negligence
Act of God
An event due to natural causes, storms, earthquakes, floods etc, so severe that no one could reasonably be expected to anticipate or guard against it
Defences to negligence
Necessity
Reasonable steps taken in an emergency to save property or lives
Defences to negligence
Reasonable self-protection
The right to use reasonable self-defence to protect himself and his home.
We all have a duty to make sure our property is safe for visitors and although care is lower for trespassers, it still exists to a certain extent.
Defences to negligence
The rule of strict liability
Rule of Rylands v Flecther
Used by courts to impose a duty on landowners in certain circumstances
Professional negligence
Generally concerns negligent statements rather than negligent acts
Negligent misstatements are actionable in tort
Establishment of special relationship is important in establishing a duty of care
Paying for advice for example
Who do auditors owe a duty of care too?
Shareholders as a body, not to individual shareholders or potential shareholders
What is a negligent statement?
4 steps
Client requests a professional opinion
Accountant gives opinion in professional capacity
Client relies on opinion when reasonable to do so
Client suffers loss as a result of the advice
