Tort non-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
Neighbour
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.
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.
Passing off
Lord Diplock, in the landmark decision of Erven Warnink BV v J Townend & Sons identified five elements that must be present to create a valid cause of action for passing off, namely, (1)
a misrepresentation (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate customers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in a sense that this is a reasonably foreseeable consequence) and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or will probably do so. Simply put, the tort of passing off protects commercial undertakings against misrepresentations aimed at their customers which are calculated to damage their business or goodwill.
similar products
Competitors engaged in a common field of activity and the plaintiff has alleged that the defendant has named, packaged or described its product or business in a manner likely to lead the public to believe the defendant’s product or business is that of the plaintiff. Passing off with respect to similar products may occur even where names are distinctly different in circumstances where the packaging is the mechanism used to generate the misrepresentation.
In the case of Kay Mart v K-Mart, the respondent is a proprietor of the trademark so even though the respondent has no business in Jamaica, there is still goodwill in Jamaica that the appellants have caused damage to.
COLGATE v TRINGATE
Different products
The second type of passing off is where it is alleged that a person has promoted his product or business in such a way as to create the false impression that his product or business is in some way approved, authorized or endorsed by another or that there is some business connection between the person promoting the product and the person with whom a business connection is being made.
Robyn Rihanna Fenty v Topshop, They were using her most recent song release so many people would be under the impression that it is her selling the merchandise. The product made it seem like she was aware and ok with the sale of the item so there were damages done to her.
Locality Based action
It is sufficient to maintain a passing off case if his goods have a reputation in the country among persons there whether residents or otherwise establish there is a likelihood of deception among consumers and potential consumers and of damage to his reputation.
McDonald’s corporation v McDonald’s Corporation Ltd, the respondent used a similar logo, an arched M and a very similar name. Even though the plaintiff does not operate in Jamaica there is an established relationship and many Jamaicans who live in the US and fly home will be aware of the existence of the plaintiff’s business which can damage the plaintiff’s image.
