Professional Documents
Culture Documents
LAW OF TORTS
A wrongful act other than a breach of contract for which relief may be obtained in the form of damages or an injunction
http://www.merriam-webster.com/dictionary/tort
A wrongful act or an infringement of a right (other than under contract) leading to legal liability.
http://www.askoxford.com/concise_oed/tort?view=uk
A tort is a form of Civil (Social) Wrong A tort is the unlawful interference (meddling or intruding) with an individual's person, property or economic interests, in certain circumstances. The law of Torts is concerned with the infliction (cause) of various forms of injury upon the person's interests.
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Tort A civil wrong . . . for which a remedy may be obtained, usually in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another Damage
Nominal Damages- Breach of contract that carries no substantial loss, nominal amount of damages awarded. Substantial Damages- These represent the measure of the loss sustained by the injured party. Despite the name they can be quite small
1.2 Motive
In tort, unlike crime, it is not usually necessary to prove anything about the defendants state of mind.
A good motive (purpose , reason or intention) will not excuse a tortious (wrongful) act and a bad motive (malice or harmful act) will not turn an innocent (not guilty) act into a tortious (wrongful) one. There are few exceptions such as the tort of malicious prosecution where there must be evidence of malice.
2 Remoteness of damages
Remoteness of Damage a breach creating a chain of events that has considerable effect. In ordinary circumstances the damages claimed are those that arise from immediate damage. If the contract specifies the extent of liability then no question of consequential damages arise
- http://www.google.co.uk/search?sourceid=navclient&hl=en-GB&ie=UTF8&rlz=1T4GZEZ_en-GBSG227SG227&q=powerpoint+remoteness+of+damages
Remoteness
Even if the breach of duty causes the injury/damage, the injury must not be too remote For example, Claudia travels to work in London The only convenient way is by train from her local station. One day she finds that a train has been derailed (overturned) outside the station and blocked the line. Therefore, she has to return home. During the morning an robber breaks into her home and shoots her in the leg.
It would be natural for her to say, I was absent from work yesterday because my train was derailed. But it would not be natural for her to say, I was shot in the leg yesterday because my train was derailed. However, it is true that, if there had been no derailment, she would not have been at home and would not have been shot. There is, however, a feeling that the link between the shooting and the derailment is not close enough. In legal language, the shooting is too remote a consequence of the derailment.
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A defendant is not liable for consequences which are too remote (far off) but he can be liable for foreseeable consequences It is not necessary for the defendant to foresee how severe the injury could be Nor does the defender have to foresee the exact way in which the injury could be caused
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Held: A splash of sodium cyanide was foreseeable but a violent explosion was not. The result was unforeseeable as no one knew it could happen and therefore too remote.
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In cases of physical injury which is more serious than would normally be expected because the plaintiff proves to be abnormally vulnerable, the defendant is liable for the full amount if injury done. This is the thin skull (or eggshell skull) principle: if A taps B on the head and cracks Bs skull because it is abnormally thin, A is liable for the fracture.
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Definition
Employers are responsible for the tortious acts of their employees in the normal course of their employment
Tortfeasor:
a person who commits a tort
Vicarious Liability
Employees relationship
Some Tests: 1. Control test
employer control over the way in which the employee performs his duties
2.
Integration test
Course of employment Only liable for the employees torts committed in the course of employment. Test - Whether the employee was doing the work for which he was employed and cases:
1. Limpus v London General Omnibus 2. 3. 4. 5. 6. 7.
3.
Multiple test
employee or entrepreneur
4.
Other factors
Co. Beard v London General Omnibus Co. :General electric service ltd v Kingston and St. Andrew Corporation Century Insurance v Northern Ireland road transport board Twine v Bean Express Rose v Plenty Lyold v Grace smith & Co
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Vicarious Liability
Employees relationship
THE CONTROL TEST Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) 1947
The facts: Stevedores (loading and unloading of vessels) hired a crane with its driver from the harbour board under a contract which provided that the driver (appointed and paid by the harbour board) should be the employee of the stevedores. Owing to the drivers negligence a checker was injured. The case was concerned with whether the stevedores or the harbour board were vicariously liable as employers. Decision: In the House of Lords, that the issue must be settled on the facts and not on the terms of the contract. The stevedores could only be treated as employers of the driver if they could control in detail how he did his work. But although they could instruct him what to do, they could not control him in how he operated the crane. The harbour board (as general employer) was therefore still the drivers employer
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Vicarious Liability
Employees relationship
THE INTEGRATION TEST (was skilled employee appointed and assigned to his duties by employer?)
Decision: In such circumstances the proper test was whether the employer appointed the employee, selected him for his task and so integrated him into he organisation. If the patient had chosen the doctor the Ministry would not have been liable as employer. But here the Ministry (the hospital management) made the choice and so it was liable.
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Vicarious Liability
Employees relationship
THE MULTIPLE TEST (is the employee working on his own account?)
Ready Mixed Concrete (South East) v Ministry of Pensions & National Insurance 1968
The facts: The driver of a special vehicle worked for one company only in the delivery of liquid concrete to building sites. He provided his own vehicle (obtained on hire purchase from the company) and was responsible for his maintenance and repair. He was free to provide a substitute driver. The vehicle was painted in the companys colours and the driver wore its uniform. He was paid gross amounts (no tax etc deducted) on the basis of mileage and quantity delivered as a self-employed contract. The Ministry of Pensions claimed that he was in fact an employee for whom the company should make the employers insurance contributions.
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Vicarious Liability
Employees relationship
THE MULTIPLE TEST (is the employee working on his own account?)
Ready Mixed Concrete (South East) v Ministry of Pensions & National Insurance 1968 contd...
Decision: In such cases the most important test is whether the worker is working on his own account (the entrepreneurial test or multiple test). On these facts the driver was a self-employed transport contract and not an employee.
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Vicarious Liability
Employees relationship
Other significant factors are as follows:
a) Does the employee use his own tools and equipment or does the employer provide for them? Does the alleged employer have the power to select or appoint its employees, and many it dismiss them. Payment of salary is, as mentioned above, a fair indication of there being a contact of employment. But there are exceptions. A person may still be an employee if he is paid no salary but derives his income solely from commission or tips. A person may receive a salary but not be an employee- for instance, Members of Parliament. Working for a number of different people is not necessarily a sign of selfemployment. A number of assignments may be construed as a series of employments
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b)
c)
d)
Vicarious Liability
Employees relationship
In difficult cases, the court will also consider whether the employee can delegate all his obligations (in which case, here is no contract of employment), whether there is restriction as to place of work, whether there is an obligation to work and whether holidays and hours of work are agreed.
Vicarious Liability
Employees relationship
In difficult cases, the court will also consider whether the employee can delegate all his obligations (in which case, here is no contract of employment), whether there is restriction as to place of work, whether there is an obligation to work and whether holidays and hours of work are agreed.
Vicarious Liability
Employees relationship
OKelly v Trusthouse forte Plc 1983 (contd...) Decision: the Court of Appeal reinstated the finding of he industrial tribunal since it was a reasonable conclusion drawn from the particular facts. Whether there is a contract of employment is a question of law but it depends entirely on the facts of each case; here there was no mutuality of obligations and hence no contract.
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Vicarious Liability
Employees relationship
The Course of Employment
The employer is only liable for the employees torts committed in the course of employment. Broadly, the test here is whether the employee was doing the work for which he was employed. If so the employer is liable even in the following circumstance.
Vicarious Liability
Employees relationship
The Course of Employment (contd...) Beard v London General Omnibus Co 1900
The facts: The same employer forbade bus conductors to drive buses. A bus conductor caused an accident while reversing a bus. Decision: the employers instructions served to demarcate the limits of the conductors duties. He was not, when driving, doing the job for which he was employed and so the employers were not liable to the person who was injured as a result of his actions.
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Vicarious Liability
Employees relationship
The Course of Employment (contd...) General Engineering Services Ltd v Kingston and St Andrew corporation 1988
The facts: Firemen were involved in a go-slow policy in support of a pay claim and therefore took longer to reach a fire at the claimants premises. The premises were destroyed as a result. Decision: the employees were not employed to proceed to a fire as slowly as possible, thus their conduct amounted to an unauthorised act
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Vicarious Liability
Employees relationship
The Course of Employment (contd...)
While engaged on his duties, the employee does something for his own convenience.
Vicarious Liability
Employees relationship
The Course of Employment (contd...)
If the employer allows the employee to use the employers vehicle for the employees own affairs, the employer is not liable for any accident which may occur. There is the same result when a driver disobeys orders by giving a lift to a passenger who is injured.
Vicarious Liability
Employees relationship
The Course of Employment (contd...)
Contrast this with:
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Vicarious Liability
Employees relationship
The Course of Employment (contd...)
If the employee, acting in the course of his employment, defrauds a third party for his own advantage the employer is still vicariously liable
Independent contractors
Normally, the person who engages an independent contractor is not liable for the latters tortious acts. Generally, independent contractors are liable for their own torts. However, an independent contractor, is vicariously liable for torts in the following circumstances. The operation
creates a hazard is exceptionally risky (Honeywill & Stein v Larkin Bros 1934) is one for which there is strict liability
The duty is personal. For example, an employer has a common law duty to his employees to take reasonable care in providing safe plant and a safe working system. If he employs a contractor he remains liable for any negligence of the latter in his work. Negligence in selecting a contractor who is not competent to do the work entrusted to him.
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Independent contractors
Case example for operation is exceptionally risky:
Honeywill & Stein v Larkin Bros 1934 The facts: Decorators who had redecorated the interior of a cinema brought in a photographer to take pictures of their work. The photographers magnesium flare set fire to the cinema. Decision: in commissioning (granting of authority) an inherently (inseparable element) risky operation through a contractor the decorators were liable for his negligence in causing the fire.
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4 STRICT LIABILITY
The defendant is liable because he acted intentionally or at least negligently. May escape liability if he shows that he acted with reasonable care. ( except breach of an absolute duty: the defendant is liable even though he took reasonable care). Test Rylands v Fletcher
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4 STRICT LIABILITY
Rylands v Fletcher
The facts: F employed competent contractors to construct a reservoir to store water for his mill. In their work the contractors uncovered old mine workings (old disused mines shafts) which appeared to be blocked with earth. They did no more to seal them off and it was accepted at the trial that there was no want of reasonable care on their part. When the reservoir was filled, the water burst through the workings and flooded the mine of R on adjoining land. Decision: F was liable for the damage suffered by R, and the principle quoted above was laid down.
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5.1 Consent
Volenti non fit injuria (no wrong is done to a person who consents to it) is the maxim which describes consent as a defence in tort (sometimes abbreviated merely to volenti). It must however be true consent, which is more than mere knowledge of a risk, and also a consent which is freely given. In some cases, the plaintiff expressly consents to what would otherwise be a wrong. For example a hospital patient awaiting a surgical operation is asked to give his written consent to the operation. But more often the consent is merely the voluntary acceptance of a risk of injury. Another example is if , as a boxer, you are punched and injured, no tort is committed; similarly, if you are injured as spectator s a result of the sporting activity, there is no cause of action
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In contrast, in situations where no real emergency exists as there is no imminent danger to anyone, then any action of a person is considered gratuitous (uncalled for or unjustified) and voluntary and the defence of volenti non fit injuria will succeed.
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# Course book Decision: the spectator had consented to the risk. He was not impelled (press on / constrain to action) by the need to save others from danger. His claim was barred (stripped) by his consent.
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The plaintiff who was mauled (attacked/ clawed) by a leopard when he crossed a barrier to put out a lighted cigarette end, was not entitled to damages as he was considered to be a volunteer; there were keepers available to do the job without risk.
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The facts: Due to an exceptionally violent storm, artificial pools on the defendants land which were well constructed and adequate for normal circumstances, were destroyed and the escaping water damaged bridges belonging to the plaintiff county council. Held: In the absence of negligence, the defendant was not liable as the accident was entirely due to an extraordinary act of nature.
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5.7 Necessity
An act which causes damage may be intentional. If this is so, the defence of necessity may be raised, provided:
a. That the act was reasonable (such as shooting a dog to prevent it worrying sheep), and b. either the act was done to prevent a greater evil or it was done to defend the realm
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5.8 Mistake
An intentional act done out of mistake may occasionally be defensible if it was reasonable. Such a case may be where a person makes a citizens arrest in the reasonable and sincere belief that the claimant committed a crime.
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For example, a blow is not proportionate to verbal provocation (Lane v Holloway 1967). Similarly, to shoot at trespassers or to set up traps or spring-guns to injure them is a disproportionate use of force to the likely harm threatened or done.
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Contributory Negligence
Contribution
Conduct of plaintiff contributed to the injury of plaintiff Plaintiff at least partially at fault May be complete or partial defense If the damage suffered as a result of negligence was partly caused by contributory negligence of the claimant his claim is proportionately reduced: Law Reform (Contributory Negligence) Act 1945 If plaintiff contributed in any part to his damages then no recovery for plaintiff
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Standard of reasonableness
there is a failure to do what a prudent person should do to avoid or reduce a foreseeable risk. Yachuk v Oliver Blais 1949
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REMEDIES IN TORT
1 Damages
Ordinary (compensatory) damages or general damages: Assessed by the court as compensation for losses which cannot be positively proved or ascertained, compensation for pain and suffering, future health issues, permanent incapacity and depend on the courts view of the nature of the claimants injury(estimated by court) . Special damages Damages which can be positively proved, such as damage to clothing or cars and covers specific losses or costs (actual amounts) Exemplary damages or aggravated damages Damages intended to punish the defendant for his act, and to deter him and others from a similar course of action in the future. These damages are only rarely awarded. They are sometimes awarded in newspaper libel cases. Nominal damages are given where the claimant has suffered injury but has suffered no real damage (as in trespass to land without damage to that land).
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Injunction
Injunction is an equitable remedy given by the court which requires an individual to refrain or do a certain act. There are two types of injunction. 1. An interlocutory injunction
2.
Awarded before the hearing to preserve status quo (existing state / condition).
A perpetual injunction
Granted after the full hearing and continues until revoked by the court.