Tort Law Flashcards
Tort?
Type of a civil wrong.
Breach of legal duty
infringement of legal right which give rise to claim of damages
Duty exists if
Law recognises it as a civil wrong
Contractual relationship
Need not to exist to claim for tort. No previous relationship need to exist
If contractual relationship exist
Two options available:
1. Under contract, damages may be awarded to put a claimant in a position if a contract was successfully performed.
- In tort, damages awared to put the person back in the position if such tortious act never took place
Limitation period
contract - 6 years from the breach of contract
tort - 6 years from the negligent act or omission but 2 years to personal injury claims
The claimant’s loss might take the form of:
physical harm to their body or assets;
pain and suffering;
psychological harm;
damage to personal reputation; or
economic loss.
Remedy for tort is
Damages,
Remedies may not be available for all types of loss.
Damages
a monetary award for the direct, foreseeable consequential loss suffered by the injured party, to restore them to the position they would have enjoyed if the wrong had not been committed
General damages
Compensation for non monetary harm suffered by claimant.
physical pain , loss of repo, psychological damage etc.
not easily quantifiable
General damages are generally awarded only in personal claims – that is, in claims brought by individuals who have suffered personal harm
Special damages
compensate the claimant for the quantifiable monetary losses suffered
expenses generated by the other party’s tort
economic loss such as loss of profits
Special damages are claimed in both personal and commercial actions
Where monetary compensation is not appropriate
Court may award injunction: to prevent the wrongdoer from continuing to act in a particular way or to positively do something to correct the harm done
Or specific restitution (restoration): for land or goods to be restored to a claimant who has been wrongfully deprived of them.
Tortfeasor
a person who commits a tort.
regardless of age, is liable for a tort (providing they were capable of understanding the consequences when committing the tort).
Liability for Torts Committed by Others
(Vicarious liability)
-if seen in some way to have authorised or encouraged it to happen;
-if some control (actual or notional) over the tortfeasor could reasonably have prevented it.
A tortfeasor is liable to compensate a claimant who can show that:
A tortfeasor owed a duty of care
Tortfeasor failed to demonstrate the necessary standard of care and skill, and thereby breached that duty of care
Claimant suffered damage as a direct, foreseeable consequence of that breach
Duty of Care - neighbour principle
A person who are closely effected by the act or breach done by one party.
Such closeness or proximity, they have duty of care to avoid causing reasonably foreseeable damage to one another.
Neighbour principle - established that
- The damage was reasonably foreseeable.
- There was a relationship of proximity between the parties (i.e. the potential victim is of a reasonably foreseeable class).
- It is fair and just in the circumstances to impose a duty of care.
nervous shock
in order to have a claim, the claimant must suffer shock and illness as a result of:
fearing for one’s own safety or for that of a close relative; and
being close to the events in both time and space.
Duty of Care Over Professional Advice (
relationship will be “proximate” if the advice is given:
in a contractual relationship;Acc and audit
in a “fiduciary” relationship; director, partner
where there is a “special relationship”
Breach of Duty of Care – Failure to Achieve Standard of Care
degree of care which should be expected of a person in order to discharge his duty of care to others
Situations Demanding Special Skills
(driver)
A person in a position that requires the exercise of special care will be expected to exercise it; any lack of training or experience is not a defence
Remoteness of Damage
If there is no duty of care, the question of remoteness does not arise.
Foreseeability, Causation and the “But For” Test
If the loss would have occurred regardless of the defendant’s negligence, it is not the direct consequence of the negligence and the defendant is not liable.
Damage claimed must be the direct, foreseeable consequence of the defendant’s negligence.
Novus actus interveniens
(a new intervening cause)
If the chain of events between the negligent act and the eventual damage is broken by some other unforeseeable factor the loss is too remote and the defendant will not be liable for it.
Example of novus
Actions of a third party
Actions of the claimant
Unforeseeable natural events
Purely Economic Loss
damages are not available for purely economic loss
-reasonable care to protect the client/buyer against suffering personal injury or damage to other assets
Who Must Prove the Case
evidential burden is usually on the claimant to show that, on the balance of probabilities, the loss or suffering was due to the defendant’s breach of duty.
Shifting the Burden of Proof
Res ipsa loquitur
(the fact speaks for themselves)
the law imposes strict liability on the defendant
Strict Liability
at common law, a person who keeps a dangerous substance is strictly liable for the consequences if it escapes
Seek to issue disclaimer but protection against liability
Companies Act 2006 provides that a company may not give its directors or auditor a permanent relief from liability in negligence
Two important defences are:
- Volenti non fit injuria – the claimant knew of the risk and voluntarily consented to it.
- Contributory negligence – a partial defence when the tortfeasor shows that the claimant’s own actions (or inactions) contributed to the loss or damage that was suffered
