Tort law: Negligence, resultant damage, defences

Question 1

What is a novus actus?

Answer 1

“Breaking the chain” between action and causation in the foreseeable sequence of events in negligence. If there is a break in the chain of causation, the defendant isn’t liable for the damage caused. A natural event doesn’t break the chain of causation, unless it was totally unforeseen.

If a third party’s novus actus creates further damage to the claimant, the defendant won’t be liable for the damage occurring after the novus actus.

Question 2

What is the tort of negligence?

Answer 2

Resultant damage, (ie caused by defendant’s negligence), must be proven to establish liability.

Question 3

What is the “but for” test?

Answer 3

It is used to see if negligence caused the injury. The claimant must show that ‘but for’ the defendant’s actions, the damage wouldn’t have occurred. In medical cases, failure to warn about the risks of surgery can be enough to satisfy the test, even if surgery wasn’t negligent. If there are many potential causes, the claimant has to prove the defendant’s negligence caused/contributed to the injury.

Question 4

What is novus actus interveniens?

Answer 4

An act by the claimant himself may break the chain of causation.

Question 5

What is contributory negligence?

Answer 5

If the claimant contributed to the injury themselves. The burden of proof is on the defendant in this case.

Question 6

Name 8 defences to negligence

Answer 6

1. obvious risk
2. inherent risk
3. voluntary assumption of risk
4. dangerous recreational activity
5. exclusion of liabilities
6. illegality
7. inevitable accidents
8. contributory negligence.

Question 7

What is ‘Volenti non fit injuria’?

Answer 7

It means consent. Implied or specific consent to carry out the act may be used as a defence.

Question 8

When must claims for torts be brought?

Answer 8

Within six years of the negligent act. for personal injury, this time period is three years.

Question 9

Give the facts, arguments and judgment of the “Hughes v. Lord Advocate” case

Answer 9

Facts:
Appellant aged eight, playing in the street with another boy aged ten. Manhole with shelter tent over it in street, and paraffin warning lamps around it. Boys took lamp into tent to explore. Paraffin escaped the lamp and was ignited, explosion happened, severely burned appellant.

Arguments:
Danger to children, due to which the appellant suffered burns, was reasonably foreseeable, but the accident was not. Can liability be proven? The workmen owed a duty of care to the appellant. If they had done their job, there would have been no accident. The cause of the accident was a known source of danger, but could not have been foreseen. The children are not trespassers. The safety measures of the workmen didn’t reach the Lord Atkin’s test - neighbour test. The presence of children in the vicinity of the shelter was reasonably foreseeable.

Judgment:
Appeal was unanimously allowed

Question 10

Give the facts, arguments and judgment of the “Simms v. Leigh Rugby Football Club” case

Answer 10

Facts:
Defendant is occupier of a football ground. Plaintiff is a member of a visiting team, who was tackled during a game and thrown into a concrete wall, breaking his leg. It is not clear if the plaintiff’s leg came into contact with the wall. The wall was in line with football rugby bylaws in its positioning.

Arguments:

Judgment:

Question 11

Give the facts, arguments and judgment of the “Simms v. Leigh Rugby Football Club” case

Answer 11

Facts:
Defendant is occupier of a football ground. Plaintiff is a member of a visiting team, who was tackled during a game and thrown into a concrete wall, breaking his leg. It is not clear if the plaintiff’s leg came into contact with the wall. The wall was in line with rugby bylaws in positioning.

Arguments:
There’s a probability that the plaintiff’s injury was not caused by contact with the wall, this couldn’t be proven. A broken leg is an accepted risk of a rugby tackle. The defendant was not liable, even if the injury had been caused by him. The injury was foreseeable, but it was ‘so improbable that it was not necessary to guard against it’. The plaintiff is assumed to have willingly taken the risk of playing on a field adhering to the bylaws. There had been no previous case of a wall being too close to the touchline.

Judgment:
The appeal was dismissed