Tutorial 6 Flashcards
tortious liability = ?
arises when someone is injured or suffers a loss due to another person’s actions or negligence
tort = ?
a civil wrong other than a breach of contract
tort of negligence?
the failure to act with due care, causing harm to someone else
which elements must a claimant prove in a tort of negligence case?
- the claimant was a legal neighbour of the defendant, and owes a duty of care
- the defendant was negligent and thereby breached the duty of care
- as a result, the claimant suffered harm
duty of care?
if your actions are reasonably foreseeable to impact someone, then you owe that person a duty of care
breach of duty = ?
victim only has a valid claim for damages if the person owes a duty of care and breaks it
res ipsa loquitur = ?
‘the thing speaks for itself’
claimant may plead res ipsa loquitur when there’s no alternative explanation for what occurred
what are examples of harm suffered due to negligence?
death
personal injury
damage to property
financial loss
causation?
claimant can only recover damages if he can prove that he suffered a loss and that the defendant’s breach of duty caused this loss
what are examples of defences for negligence?
- contributory negligence
- volenti not fit injuria
contributory negligence?
arises if the claimant was partly the author of his own misfortune
volenti not fit injuria?
‘to one who volunteers, no harm is done’
can act as a complete defence
claimant is aware of potential risks before participating
negligence and professional advisers?
courts have extended the ‘neighbour’ principle to negligent advice and to purely financial loss
one owes a duty of care to those whom they advise
vicarious liability of employers?
businesses are responsible for the torts of their employees during the course of their employment
vicarious liability?
where one person is held liable for the torts of another, even though that person didn’t commit the act themselves
requirements to establish liability on the part of the employer?
- wrongdoer must be an employee
- wrongdoer must have committed a tort
- tort must have been committed in the course of employment
control test for vicarious liability in employment?
worker is an employee if employer had control over the manner of performance
organisation/integration test for vicarious liability?
proof that the worker is integrated into the employer’s company
an independent contractor is outside the company, and therefore vicarious liability cannot be claimed
multiple/economic reality test for vicarious liability?
under this test, several questions are asked, e.g:
- does the employer have a right to suspend/dismiss/deduct salaries from the worker?
- does the employer provide tools for the worker?
to prove whether or not the employer is responsible for the employee
tort of passing off?
passing off is a tort which protects the goodwill of a trader from misrepresentation
involves misleading the public to think you’re someone you’re not by passing off as someone else
tort of defamation?
english law of defamation recognises reputation as an interest worthy of protection
english law afford protection to reputation by holding that every person is entitled to their good name, which if brought into disrepute, may give cause for action
defences to a claim of defamation?
- justification
- privilege (absolute/qualified privilege)
- fair comment
justification defence to a claim of defamation?
in order for defence of justification to be successful, the defendant doesn’t have to prove the truth of every aspect of the words complained
privilege
if untrue defamatory allegations are published on an occasion of privilege, they’re protected from a claim of defamation
fair comment regarding defence for defamation?
when dealing with non-malicious statements of opinion commenting on facts of public interest
tort of private nuisance?
a mechanism to deal with ongoing annoyance that can arise as a result of certain land usage
tort of trespass to the person, land and goods?
trespass to the person = framework to combat injurious actions against individuals (e.g., battery)
trespass to land = unjustified interference with the possession of land (e.g., refusal to leave property)
trespass to goods = unwarranted interference with personal property
