LAW OF TORT Flashcards
DEFINITION OF LAW OF TORT
A civil wrong arises by operation of the law and not through the agreement of the parties concerned
Types of damages from tort:
(2 answer)
1) LIQUIDATED DAMAGE
- the compensation amount is fixed
2) UNLIQUIDATED DAMAGE
- the compensation is not decided yet by the court
- need to consider all the circumstance
TORT OF NEGLIGENCE
Plaintiff must prove:
(3 answer)
1) defendant owed the plaintiff a duty of care
2) defendant breached that duty of care
3) plaintiff suffered damage as the consequences of that breach
THE DUTY OF NEGLIGENCE
Who has the responsible?
The person has a legal duty to take care of it
Principle given by LORD ATKIN:
- you must not injure your neighbor
- the person has a duty to take reasonable steps to avoid acts or omissions which he can reasonable foresee
BREACH OF DUTY
Occur when defendant has failed to do what a reasonable person would have done (if you fall below standard, you breach)
1) Reasonable man takes higher precautions when the risk of injury is high
2) It is not always reasonable to ensure all precaution are taken when the cost far exceed the risk
3) The defendant must take the victim as they are
What is RES IPSA LOQUITOR?
The facts speak for themselves ( the damage is obvious)
The burden of proof is reverse. The defendant now must prove that he was not negligent.
RESULTANT DAMAGE
(cause and effect)
“BUT FOR” test
- if it was not “but for” the defendant’s act, the plaintiff would not have suffered damages.
The damage must be reasonably foreseeable and not too remote.
The main law under this? (3 answer)
1) Plaintiff will not be able to claim for damages that would have happened to them anyway, irrespective of the defendant’s action.
2) Liability is limited to damages that a reasonable man would have foreseen
3) A damage is considered “too remote” if it follows a break in the chain of causation
NOVUS ACTUS INTERVEINIENS
NOVA CAUSA INTERVENIENS
“A BREAK IN THE CHAIN OF CAUSATION”
- although the defendant break the duty and causes the plaintiff’s damages but some other intervening event regarded as the sole cause of that damages.
3 Types of Intervening Event
1) NATURAL EVENT
- the loss is caused by a natural event
2) ACT OF THIRD PARTY
- when the act of 3rd party act is the immediate cause of the plaintiff damages
3) ACT OF THE PLAINTIFF
- plaintiff own conduct or lack of care has been the sole cause of his own damages
- but can be “CONTRIBUTORY NEGLIGENCE” if the act of the plaintiff + defendant cause the damages
DEFENCES
Raised by a DEFENDANT in an action in negligence against him
To lessen the compensation or rebut the claim
5 possible defense are:
VCILS
1) VOLENTI NON FIT INURIA
2) Contributory negligence
3) Illegality
4) Limitation of action
5) Statutory authority
VOLENTI NON FIT INJURIA (DEFENCE)
The defendant has to show that the plaintiff knew of the risk, and consented to the risk of injury
- a defense of consent or voluntary assumption of risk
Consent can be given:
1) expressly - agrees through (orally/writing)
2) impliedly - from the claimant’s conduct
CONTRIBUTORY NEGLIGENCE (DEFENCE)
The defendant has to show that the plaintiff was at fault and contribute to his own injury too
- it is used to reduce the amount of compensation
ILLEGALITY (DEFENCE)
Where the claimant suffers injury while participating in a criminal activity
The court may find the defendant did not owe the claimant a duty of care
LIMITATION OF ACT (DEFENCE)
The rights to initiate formal legal proceedings for damages in tort within 6 YEARS from the breach of duty
- if exceed 6 years, the action is statute-barred (cannot be sued)
WHAT IS PROFFESIONAL NEGLIGENCE
This is for professional people who gives advice to others who are sufficiently proximate.
The negligence (error in giving advice) would result in pure economic loss.
