Tutorial 6

Question 1

tortious liability = ?

Answer 1

arises when someone is injured or suffers a loss due to another person’s actions or negligence

Question 2

tort = ?

Answer 2

a civil wrong other than a breach of contract

Question 3

tort of negligence?

Answer 3

the failure to act with due care, causing harm to someone else

Question 4

which elements must a claimant prove in a tort of negligence case?

Answer 4

• 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

Question 5

duty of care?

Answer 5

if your actions are reasonably foreseeable to impact someone, then you owe that person a duty of care

Question 6

breach of duty = ?

Answer 6

victim only has a valid claim for damages if the person owes a duty of care and breaks it

Question 7

res ipsa loquitur = ?

Answer 7

‘the thing speaks for itself’

claimant may plead res ipsa loquitur when there’s no alternative explanation for what occurred

Question 8

what are examples of harm suffered due to negligence?

Answer 8

death
personal injury
damage to property
financial loss

Question 9

causation?

Answer 9

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

Question 10

what are examples of defences for negligence?

Answer 10

• contributory negligence
• volenti not fit injuria

Question 11

contributory negligence?

Answer 11

arises if the claimant was partly the author of his own misfortune

Question 12

volenti not fit injuria?

Answer 12

‘to one who volunteers, no harm is done’

can act as a complete defence

claimant is aware of potential risks before participating

Question 13

negligence and professional advisers?

Answer 13

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

Question 14

vicarious liability of employers?

Answer 14

businesses are responsible for the torts of their employees during the course of their employment

Question 15

vicarious liability?

Answer 15

where one person is held liable for the torts of another, even though that person didn’t commit the act themselves

Question 16

requirements to establish liability on the part of the employer?

Answer 16

• wrongdoer must be an employee
• wrongdoer must have committed a tort
• tort must have been committed in the course of employment

Question 17

control test for vicarious liability in employment?

Answer 17

worker is an employee if employer had control over the manner of performance

Question 18

organisation/integration test for vicarious liability?

Answer 18

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

Question 19

multiple/economic reality test for vicarious liability?

Answer 19

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

Question 20

tort of passing off?

Answer 20

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

Question 21

tort of defamation?

Answer 21

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

Question 22

defences to a claim of defamation?

Answer 22

• justification
• privilege (absolute/qualified privilege)
• fair comment

Question 23

justification defence to a claim of defamation?

Answer 23

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

Question 24

privilege

Answer 24

if untrue defamatory allegations are published on an occasion of privilege, they’re protected from a claim of defamation

Question 25

fair comment regarding defence for defamation?

Answer 25

when dealing with non-malicious statements of opinion commenting on facts of public interest

Question 26

tort of private nuisance?

Answer 26

a mechanism to deal with ongoing annoyance that can arise as a result of certain land usage

Question 27

tort of trespass to the person, land and goods?

Answer 27

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