Tortious Liability in Business

Question 1

Tort

Answer 1

A wrongful act

Question 2

Two or more people are liable for the same liability

Answer 2

Joint and several liability

Question 3

Intentional torts; what is it and to what is it a trespass to?

Answer 3

Have been inflicted on purpose. It is a trespass to

a) the person
b) personal property
c) real property (such as land)

Question 4

Tort of negligence, which specific points need to be proved?

Answer 4

1) That the defendant owed a DUTY OF CARE to the claimant, either at common law or under statute
2) That there was a BREACH of that duty of care
3) That the breach CAUSED the damage, which must not be too REMOTE a consequence of the breach

Question 5

Duty of care

Answer 5

A legal obligation that aims to avoid omissions and acts that can be reasonably foreseen as a threat to an individual

Question 6

What factors determine a duty of care?

Answer 6

1) Reasonable foreseeability
2) Whether it is fair, just and reasonable to impose a duty
3) Proximity

Question 7

Psychiatric injury can also extend to a secondary victim, so the bystander, next to the primary victim. When does this apply?

Answer 7

Bystander claimant must have perceived the event with their own ‘UNAIDED SENSES’, such as an eye- witness; or saw the immediate aftermath.

Question 8

Negligent misstatement

Answer 8

Can be requested when the appraiser makes an untrue or a misleading statement that might result in financial loss

Question 9

The negligent misstatement strongly depends on…

Answer 9

the existence of a special relationship of reliance, which arises if the defendant could reasonably foresee that the statement they made would have been relied upon by the claimant. To avoid that is will be exploited, the relationship is quasi-contractual (it exists by order of the court, not by agreement of the parties)

Question 10

How to test whether the duty of care is breached?

Answer 10

It is OBJECTIVE and done through a REASONABLE PERSON TEST. During this test, a hypothetical reasonable person is made up by the court.

Question 11

How to prove causation and remoteness of damage?

Answer 11

1) Causation must show a clear link between loss and conduct. This test is called: BUT FOR TEST.
2) Remoteness states that only when the injury was REASONABLY FORESEEABLE, negligent conduct can be blamed.

The remoteness applies the

• THIN SKULL RULE (victim should be taken as how we found him)
• NOVUS ACTUS INTERVENIENS (an act breaking the chain of causation)

Question 12

Defences to Negligence?

Answer 12

a) Contributory negligence:
Describes the case where the claimant committed unreasonable failure to look after his/herself and was therefore partly to blame

b) Violenti non fit injuria:
The claimant knowingly and voluntarily accepted the risk (Assumption of risk in the US terms)

Question 13

Statutory product liability (alternative to negligence)

Answer 13

The action is only concerned with the SAFETY of a product rather than the quality and value of it.

Question 14

Occupier

Answer 14

A person who owes liability to visitors in the form of duty of care.

(The duty of care is a liability to all visitors, just as well to uninvited visitors)

Question 15

Two types of nuisances

Answer 15

1) Private nuisance

2) Public nuisance

Question 16

When is defamation tort applied?

Answer 16

When defamatory statements made by another have had an adverse effect on their reputation

Question 17

Two sorts of defamations?

Answer 17

1) Slander (oral)

2) Libel (written)

Question 18

Requirements for defamation?

Answer 18

(1) Defamatory statement
(2) Referred to the claimant
(3) Publication

Question 19

Defences for defamation?

Answer 19

• Justification / Truth
• Honest opinion
• Publication on a matter of public interest
• Absolute privilege
• Qualified privilege
• Unintentional defamation

Question 20

Some economic torts are:

Answer 20

(1) Deceit
(fraud)

(2) Malicious falsehood
(false statement)

(3) Passing-off
(passes off his or her own products as the claimant’s, like copyright infringement)

(4) Interference with contract
(defendant persuades a party to not carry out a contract or interferes with execution of the contract)

(5) Conspiracy
(associating with other people to cause injury to another person)

Question 21

Two types of remedies in tort

Answer 21

• DAMAGES (financial compensation)
  
  • Pecuniary loss (loss of earnings and expenses)
  • Non-pecuniary loss (loss of enjoyment in life)
• INJUNCTION (discretionary, equitably remedy like preventing from publishing a story)
  
  • Can be prohibitory or mandatory
  • Can also be distinguished based on time
    
    • Temporary injunction is granted before trial outcome
    • Final injunction is granted after completion of trail

Question 22

Violenti non fit injuria

Answer 22

The claimant knowingly and voluntarily accepted the risk

Question 23

Contributory negligence

Answer 23

Describes the case where the claimant committed unreasonable failure to look after his/herself and was therefore partly to blame

Question 24

Requirements for statutory product liability?

Answer 24

Claimant must show that:

1) Product is DEFECT
2) DAMAGE IS SUFFERED by the claimant
3) How the damage is CAUSED