Tort law – Contract

The law of tort is that set of rules specifying certain actions and omissions as wrongs which give rise to civil liability. Tort of Negligence It arises when damage is caused to a person or his property by a failure to take such reasonably cares as the law requires in the circumstances of the case. The damage could be caused by a negligent act or omission; meaning that the defendant did something or the defendant failed to do what he should have. Elements of negligence To succeed in an action for negligence, the plaintiff must prove ALL the followings: The defendant owed him a duty of care.

Test for Duty of Care (Spandeck v DSTA) Preliminary requirement – Factual Foreseeability (requirement of reasonable foreseeability from a factual perspective) Factual foreseeability is established if it can be shown that “the defendant ought to have known that the claimant would suffer damage from his carelessness”. In other words, if a reasonable man standing in the position of the defendant would have foreseen injury to the plaintiff by his conduct, the defendant owns the plaintiff a duty of care. Two-stage test – Proximity & Policy consideration.

Legal Proximity – the closeness and directness of the relationship between the parties Physical Proximity – in the sense of space and time Example: a motorist on the expressway owes a duty of care to drive and maintain control of his vehicle in such a way as not to injure other motorists and road users in the immediate vicinity Circumstantial Proximity – in term of relationship between them Causal Proximity – the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained.

Example: Property valuer issue a valuation report prepare negligently may own a duty of care to a third party whom the valuer knows is likely to rely on that report to make an investment decision Once proximity is established, a prima facie duty of care exists. Nervous Shock – establishing proximity Must be able to show that: Plaintiff has close ties of love and affection with the victim Proximity to accident ( P must have witnessed the accident itself or immediate aftermath – same state when accident happen) P must have witnessed accident with own sight and hearing.

P suffer severe physical damage to mind such that it can be said to be a kind of illness Policy Consideration – would imposing a duty of care on defendant be detrimental to public interests? If imposing duty of care would be detrimental to public interests, then prima facie duty of care is negated and NO duty if care is established Floodgates argument: the courts have always taken the view that a careless person should not have to compensate all the people who suffer as a result of his conduct. A careless person need only compensate a victim of hiss carelessness if he owes him a duty of care.

The defendant breach that duty Where the defendant does not take reasonable steps to ensure that the standard of care required by the duty is complied with, he is said to breach his duty of care. The standard required is that of a reasonable man. Of the defendant does not act in a reasonable manner in the given set of circumstances, he is regarded as having breached his duty. 1 / 3 All defendants are held to the same standard but certain factors may cause the courts to hold certain person to different standards: pg 518 Level of skill – E. G. If the defendant is a doctor, then the standard of care expected is that which a reasonably competent doctor will exercise.

(Wells v Cooper, 1958) Likelihood of injury – if the likelihood of injury is high, then the court will require a higher standard of care upon the defendant (Bolton v Stone, 1951) Seriousness of injury (Paris v Stepney,1951) Cost of avoiding risk – if the risk of harm was greater, then additional precautions ought to be taken by the defendant (Latimer v AEC Ltd,1953) The plaintiff suffered damage as a direct result of the defendant’s breach of duty Causation The plaintiff must prove that he has suffered actual physical injury, psychiatric injury, loss or damage as a direct result of the defendant’s breach. Use the “but-for test” to determine causation:

Plaintiff would not have suffered loss but for defendant’s negligence The type of damage suffered by the plaintiff was not remote Remoteness of damage The defendant is not responsible for all the consequences that flow from his breach of duty. The plaintiff must not only prove that the damage resulted directly from the defendant breach of duty of care but also that the damage was of a type that was reasonably foreseeable. This means that the court must decide whether a reasonable man standing in the position of the defendant would have foreseen the type of damage to result from his conduct.

Furthermore, the damage suffered by the plaintiff may be more severe than that which could reasonably be foreseen by the defendant. Nevertheless, the defendant could still be liable because the damage is not too remote under what is called “the egg-shell skull rule”. (Smith v Leech Brain & Co, 1962) Defences (by defendant who is trying to avoid liability) The defendant can show that in fact one or more of these elements did not exist, and if he succeeds, he would not be liable for negligence.

The defendant may claim that: He owed no duty of care to the plaintiff Although he owed a duty of care, he had acted reasonably and had not breached the duty of care which he owed Even though he owed a duty of care and he had breached his duty, his breach did not cause the plaintiff loss Even if he owed a duty of care, breached that duty and caused the plaintiff loss, the plaintiff loss was remote Volenti Non Fit InjuriaThe plaintiff had consented to the risks involved in the relevant circumstances which lead to the tort. Contributory Negligence Section 3(1) Contributory Negligence and personal injuries Act describes the situation where a defendant can raise the defence of contributory negligence.

Essentially, this defence can only be raised in situations where the plaintiff’s injury was partly contributed to by his own fault. In such a situation, the court will apportion the liability between the parties. Disclaimer Somewhat similar to the exemption clause in the contract. For disclaimer too be effective, it must be reasonable under the Unfair Contract Terms Act. Vicarious Liability An employer is only vicariously liable for the torts of his employee which are committed in the course of employment. Hence, if the employee committed the tort outside the course of his employment, 2 / 3 the employer is not vicariously liable.

If an employee discharges his duties in an improper way or in a way expressly forbidden by his employer and, in so doing, commits a tort, the employer may nevertheless be vicariously liable. This is because the employee was acting in the course of employment when he committed the tort. Since an employer profits from the work of his employee, the law considers it reasonable to hold him vicariously liable for his employee’s acts or omissions. This enables the injured party to claim against the employer who would be likely to be more able than his employee to pay any damages which the court may award.

*the employee is not excused from liability but the plaintiff has a choice to sue the employer instead of employee. Tort of Defamation Elements of Defamation There was a statement referring to the plaintiff Published by the defendant to a third party Tends to lower the plaintiff in the estimation of right-thinking members of society generally Tends to cause him to be shunned or avoided Defences Justification Fair comment Absolute privilege Qualified privilege Tort of Passing Off Where person conducts business so as to lead others to believe that his goods/services are those of another’s Elements of Passing Off He has business goodwill.

The defendant committed acts of misrepresentation which lead to confusion and deception Must be reasonably foreseeable that the misrepresentation will cause injury to the business or goodwill of another trader and there was in fact such injury or damage. Tort of Inducing Breach of contract Defendant knowingly and intentionally induces a third party to breach his contract with plaintiff Elements of Inducing Breach of Contract Act with knowledge of the existence of the contract Intention to interfere with the plaintiff contractual rights based on an objective test POWERED BY TCPDF (WWW. TCPDF. ORG).