Tort-negligence Flashcards
What is a tort
The law of torts defines the obligations imposed on one member of society to his or her fellows and provides for compensation for harms caused by breach of such obligations
Negligence Based Torts
There are four basic components that must be present for the successful presentation of an action founded on negligence: 1) the existence of a duty of care situation, 2) Breach of the duty of care, 3) a connection between the defendant’s carless conduct and the damage, and 4) that the particular damage is not so unforeseeable to be too remote
Neighbor
There has long been confusion as to who exactly someone’s neighbor is. It was determined if your actions can foreseeably affect someone else then they are your neighbour. In the case of Donoghue v Stevenson, the claimant suffered from the defendant’s actions, and even though they are not geographically near each other, she was found to be the defendant’s neighbour
Duty of Care
The notion of duty examines whether the law acknowledges the possibility of tortious liability in a given situation. Even where the defendant’s carelessness can be shown to have caused damage to the claimant, the law may nevertheless not acknowledge the existence of a ‘duty situation’ thereby refusing to impose liability.
In the case of Donoghue v Stevenson [1932] AC 562 (UK), The claimant purchased a bottle of ginger beer that was manufactured by the respondent. Upon consuming a moderate amount of the product, the remains of a decomposed snail had been discovered. The claimant suffered from shock and severe gastroenteritis as a result. The court held that the respondent had a duty of care to the claimant as their customer to ensure that there were no toxic substances in their goods. They neglected their duty and were held liable for the damages caused.
Standard of Care
The standard of care defines the conduct that must be present to establish negligence in law. If the defendant causes loss or injury to the defendant but is able to show that he acted in a way that a reasonable person would have acted, no liability would attach.
In the case of Javier Arthurton , Sandra Arthurton v Winston Skeete and Wesk Limited, upon stepping foot on the MV Sea Hustler, Javier severely damaged his left foot. He alleged that this was due to the negligence of the defendant but the court held that the defendants paid due care and were therefore not negligent
Causation
In establishing legal liability in tort, the defendant must be shown to have caused the loss or damage in question.
In the case of Lisa Ann Mc Kenzie v Medcorp Limited and Cancer Centre of The Caribbean Limited, the late Ricardo McKenzie died from a combination of adiation necrosis, a candida infection and a uncured abscess in his brain. It was found that he could have lived another 5 years approximately had he not had the radiaton necrosis which was onset by the negligence of the defendant. There was a duty of care and a breach of that duty.
Damages
A plaintiff cannot recover damages for tortious acts where the damage is of such a kind that was not foreseeable to the reasonable man. It must return the afflicted to the position they were at before the damages occurred.
In the case of Overseas Tankship Ltd v Morts Dock & Engineerng Co. Ltd, the appellants recklessly allowed oil to be spilled into the bay knowing nearby ships were using flammable materials and on a wooden wharf. This damage was both foreseeable and direct thus the appeal was upheld.
Contributory Negligence
This is when the injured party did not, in his own interest, take reasonable care of himself and contributed by this want of care to his own injury. Contributory negligence is based on the principle that where a man is part author of his own injury, he cannot call on the other party to compensate him in full.
In the case of Michael Francois v Ryan Richards the plaintiff parked on the right side of the road and attempted to cross to the left side of the road when he was hit by the defendant the higher court held that contributory negligence was present since the plaintiff did not take proper care before crossing the road, and contributed to his injuries. If he had greater duty of care to himself, this could have been avoided.
Occupier’s liability
Occupiers’ liability generally arises from occupancy or control, not on ownership. Responsibility for the
condition of premises resides with the person in actual occupation or possession, whether or not such person enjoys legal or beneficial ownership. Duty is owed to lawful and unlawful visitors.
In the case of Vidya Jaglal v The uwi and the attorney general oof t&t, the defendant was struck in the back of the head with a cricket hardball whilst sitting in a classroom waiting for class to begin. The court held that the university should have provided a safe environment for classes, exposed her to a foreseeable risk and failed to ensure precautions were taken to avoid injury.
Employers’ Liability
The duty of care of the employer to the employee extends to the provision of competent staff, a safe place of work, safe equipment and a safe system of work.
In the case of Premnath Jaikaran v Saiscon Limited, the plaintiff was instructed to open a sealed barrel that had residual oils and gasses by welding. This resulted in an explosion which cost the plaintiff his right eye. This injury was foreseeable and avoidable and the injuries directly resulted from the risk which shows that the defendant breached his duty to provide the workers with a safe system of work.
Vicarious Liability
An employer will be liable for the tort of his or her employee, provided that the tort is sufficiently connected with the individual’s employment. The conduct can be regarded as done by an employee while acting in the ordinary course of the employee’s employment and not on a frolic of his own.
In the case of Curtis Arthurs v James Jackson, Curtis Arthur was thrown from a boat by his coworker when the coworker attempted to splash another boat. This resulted in curtis’ leg being amputated above the knww. It was ofun that Gladstone Bialey was performing in the scope of his job, albeit in an unprofessional manner, and thus James Jackson is liable for the actions of his employee
