Torts Flashcards
Torts
A tort is a civil wrong. The law of torts deals with the rights and obligations that people owe to others and the infringement of these rights and obligations.
The main aim of the law of torts is to return the wronged person to the position he or she was in before the wrong occurred, by providing compensation or damages to the person whose rights have been infringed. These rights include the right to be protected from negligence, defamation, nuisance and trespass. If a person feels that their rights have been infringed and the infringement fits into one of the categories of torts, the injured party can sue the other party under tort law.
Not all rights are protected under the law of torts. For example, there is no separate tort of invasion of privacy.
Negligence
Negligence means a failure to take reasonable care. A person is obliged to take reasonable care in regard to other people, where it is reasonably foreseeable that other people could be harmed by their actions or omissions.
4 key principles of negligence, what must be proved, what happens next, how was it made
When bringing an action for negligence it must be proved that:
• the person who was negligent owed a duty of care to the person injured
• the duty of care was breached
• the breach of the duty of care caused loss or damage (causation) and
• the wronged person has suffered loss or damage.
If it can be proved that the person was owed a duty of care and that the duty of care was breached and harm was caused, then the wronged person can claim compensation, normally by seeking an order for damages.
The law of negligence was developed through common law. The British case of Donoghue v. Stevenson [1932] AC 562 established the tort of negligence.
A person owes a duty of care if: 3 factors must be present
A person owes a duty of care if:
• the risk was foreseeable (the person knew or ought to have known about the risk)
• the risk was significant or not insignificant (not far-fetched or fanciful) and
• in the circumstances, a reasonable person in the same position would have taken precautions to
eliminate any risk of harm.
4 exceptions to the duty of care
• When participating in a risky recreational activity, consumers can sign a waiver to show they accept responsibility for injuries. The waiver is not legal if the operator is grossly negligent or makes a false statement in relation to the waiver. For example, bungy-jump operators may ask patrons to sign a waiver accepting any reasonable risk associated with the jump, but if the operator has not maintained their equipment or has said the jump was safe when it was not then the operator will still be liable for a patron’s injury.
• A good Samaritan is a person who gives care, help and advice in an emergency situation. ‘Good Samaritans’ are exempt from legal liability in negligence claims as long as they act in good faith, within their competence and without payment. It will be up to the courts to decide if the rescuer acted in good faith.
• A person who donates food in good faith for charitable purposes is protected from legal liability if a person is harmed from having consumed the food as long as the food was safe to consume at the time it left the possession or control of the donor.
• Volunteers (people who do community work for a community organisation, association, local government or public authority) cannot be held personally liable if they cause damage or injury to another. Instead, the community organisation may be held liable as long as the worker was not affected by drugs or alcohol, and acted within the scope of the organisation and any instructions given by the organisation.
Explain what a breach of a duty of care is and explain what the court considers in determining whether a reasonable person would have taken precautions against a risk of harm
A breach of a duty of care occurs when a person does not take all the care they should. The duty is breached (broken) when the defendant fails to do what a reasonable person would have done. This will vary from case to case, depending on the circumstances. However, in determining whether a reasonable person would have taken precautions against a risk of harm, the court considers:
• the likely risk of harm
• the likely seriousness of the harm
• the burden of taking precautions to avoid the risk of harm
• the social utility (benefit or worth) of the activity that creates the risk of harm.
Causation in terms of negligence
To succeed in a claim under the law of negligence, it has to be possible to prove that the injury was caused by the breach of duty of care, and the injury would not have occurred without the breach of duty of care. This is particularly important in cases that have been going for a long time, such as asbestos cases, where the plaintiff has to show that the harm caused was as a result of the breach of the duty of care of the defendant, and there were no other intervening causes.
2 factors when a duty of care can be breached but the defendant is still let off
Too remote from the breach of duty of care
Break in the chain of causation
Loss of harm rule in terms of negligence
As a general rule, the plaintiff can only rely on a legal remedy through the law of negligence if it can be proved that he or she suffered a loss or harm, even if it is minor. The loss or harm can be physical, mental or damage to property.
3 defences to negligence
Inadequate number of elements
Contributory negligence
Assumption of risk (volenti non fit injuria)
Negligence - inadequate number of elements defence
The defendant can claim that the plaintiff has not established the four elements of negligence. The defendant will try to prove that a duty was not owed, or a duty was not breached, that the damage or injury was too remote from the defendant’s act or omission, or that no loss or harm has been suffered.
Contributory negligence
The defendant may try to prove that the plaintiff helped to cause the harmful situation or is partly to blame for the harm done. In determining contributory negligence, the court will look at the defendant’s actions to determine the degree of care taken, what the defendant knew or ought to have known about any associated risks and whether a reasonable person in the same position would have acted in the same way as the defendant.
Assumption of risk negligence defence
The defence of volenti non fit injuria refers to the voluntary acceptance of the risk of injury. The defendant must prove that the plaintiff was aware of an obvious risk and that he or she voluntarily chose to take the risk. For example, a person who knowingly accepts a ride with a drunken driver is accepting an obvious risk of being injured in a car accident, as it is well known that excessive alcohol consumption impairs driving ability.
Similarly, sportspeople accept the risk of suffering common injuries that may occur within the rules of their sport. For example, jockeys consent to injuries of the type reasonably expected in racing. However, the defence of assumption of risk does not apply in cases involving the provision of professional or health services as health providers have a legal responsibility to warn people of any inherent risk associated with their work.
Defamation
The tort of defamation is aimed at protecting the character of individuals against attempts to discredit their standing in the eyes of the community. A statement or other published material is therefore regarded as defamatory if it lowers the reputation of the plaintiff in the eyes of others in the community. Defamation laws give people the right to take legal action against people who have wrongfully attacked their reputation.
3 key principles of defamation
To prove defamation it must be shown that:
• a statement is defamatory
• the defamatory statement refers to the plaintiff
• the statement has been published (communicated to people other than the person it refers to) by
the defendant.
