What is Tort? -The French word of ‘wrong’ -That set of rules specifying certain actions and omissions as wrongs which give rise to civil liability -Almost entirely based on case law Tort of Negligence -The “neighbour principle” o“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour” Lord Atkin, Donoghue v Stevenson ? Who is neighbour? Persons who are so closely and directly affected by action that one ought reasonably to have them in contemplation when thinking about such an action -3 Elements to Tort of Negligence oDUTY OF CARE:
?Spandeck Engineering v DSTA •Landmark case for tort of negligence in Singapore •Becomes a universal test for all cases on negligence of tort •Judged that there must be a two-stage test applied •Factual foreseeability is a prerequisite ?Factual Foreseeability (a prerequisite) •Even when you prove this, there is no duty of care yet •Conversely, only when there is factual foreseeability then we go to the test. •This is the ability to see beforehand the likely effects of a certain action or inaction •Is it foreseeable that an action would result in a certain consequence?
If it is, then factual foreseeability can be established ? Proximity (First stage) •A legal notion – is the party close enough for duty of care to arise? •Physical proximity – closeness in space and time •Causal proximity – Lord Atkin’s statement above (one should keep in mind those people that are so close to them such that as they do something they should know what is going to happen to them) •Circumstantial proximity – circumstances to establish the relationship between parties oVoluntary assumption by the defendant oReliance on the part of the plaintiff ?Policy (Second stage).
•Even if proximity is established, or prima facie duty of care is established, on policy grounds, they can hold that there is no duty of care due to various reasons oWould imposing a duty of care be detrimental to public interest? oFloodgates argument – would defendant be exposed to indeterminate amount of liability? oIf so then prima facie duty of care is negatived oBREACH OF DUTY: ?To breach the duty of care is to not meet the standard of care required of the defendant ? Basically 4 factors to look into: •Level of skill (is it a professional service? How much do they know?) oBolam test (in the case of professionals) ?
Fellow professionals – look to see whether or not they have exercised the skills that a (doctor) would have done oBolitho test (doesn’t mean that if everyone says its right, its right) ? Responsible body must be defensible with reference to comparative risks and benefits •Likelihood/seriousness of loss oThe more serious/likely, the higher the standard of care expected •Cost of avoiding loss oAll factors being equal, if the risk of harm to the plaintiff is high, then less weight will be attached to the cost of avoiding that risk ?
Res Ipsa Loqitar •Burden of proof is on the defendant to show he’s not negligent •Meaning literally ‘the event speaks for itself’ •States that breach is so self-evident that the fact the event occurred itself proves the breach •Difficult to argue generally. Only applies when it is obvious that the accident could not have occurred without the negligence of the defendant oRESULTING DAMAGE: ?Plaintiff must show that he suffered damage as a result of the defendant’s breach ? Two aspects to be considered ?Causation.
•“But-for” test – prove that the plaintiff would not have suffered damage ‘but for’ the act •If there is more than one cause, then the court is to decide the extent to which each cause contributed to the damage ? Remoteness •“Reasonably foreseeable” test – the damage caused by the negligent act must be reasonably foreseeable, even if the damage is a direct result of the act oNot necessary to foresee the exact damage oSufficient if the type or kind of damage is reasonably foreseeable oThe “egg-shell skull rule” – extent of damage is not necessary to be proved Defence against the Tort Charges.
-Volenti non fit injuria oPlaintiff knows of and voluntarily assumes risk of injury – complete defence oArgue that the plaintiff has consented to the risks involved -Contributory Negligence oSection 3(1) Contributory Negligence and Personal Injuries Act: defendant can raise a partial defence oOnly in situations where the plaintiff’s injury was partly contributed to by his own fault -Exemption clauses and disclaimers oMust satisfy the UCTA to be effective ?Must be a business liability, cannot exclude deaths and physical injuries oDefendant can escape liability.