Professional Documents
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in respect of civil wrongs committed against recognizes entities The liability is not dependant on contractual agreement Deals with wide range of situation - providing remedies for various injuries. The word tort itself - French for wrong -now to mean a wrong recognized by law. Winfield - tort as a wrong the victim of which is entitled to redress / specific civil wrong or injury. Law of torts has two function:
- to determine when a person has to pay compensation for harm wrongly caused. - to determine what conduct may be stopped or regulated by the courts order.
Kinds of interest that law of torts protect against: a. person - assault, battery, personal injury b. property - trespass, nuisance, interference with goods c. financial - deceit, economic loss d. reputation - defamation, libel, malicious prosecution
A tort arises not simply out of the infliction of injury to the interest stated above but in the infliction of a legally recognized injury Liability in tort may arise: 1. Primary - where a person is liable for his own act or omission in breach of a legal duty 2. Vicarious- Where a person is liable for the act or omission of another with whom he stand in some special relationship
Negligence as an independent tort is defined as the breach of a legal duty to take care - as a result of which -the plaintiff suffers damage. To succeed in an action for negligence plaintiff must prove ALL the elements of negligence: First element: Duty to take care Second element: Breach of the duty Third element: Breach that causes injury / damage
plaintiff a duty to take care If there is no duty to take care, a negligent act has no legal consequence A duty of care exist in normal circumstances where if a person does not take the usual precautions, another person or his property may be injured/damaged To test the existence of duty of care - Donoghue v. Stevenson (1932) - The Neighborhood Principle
the sense that the court will a hypothetical question; Would a reasonable man, who is in the same circumstances as the defendant, foresee that his conduct will adversely affect the plaintiff?
If the answer is YES, then the plaintiff is a neighbour of the defendant If the answer is NO, plaintiff not a neighbor, no duty to take care Palsgraf v. Long Island Railroad
but that the duty have been breached i.e. the defendant does something below the minimum standard of care required
Standard of care to determine breach or not - that of a
reasonable man i.e. would a reasonable man have acted as the defendant has done if the reasonable man was faced with
Factor to consider
Practicality of precaution
See Government of Malaysia v. Jumat bin Mahmud compared with Mohamed Raihan bin Ibrahim v. Government of Malaysia See also Latimer v AEC closing of factory not practical compared to the risk
duty was the main cause of the injury, as long as it materially contributed to the harm - McGhee v. National Coal Board
The damage or the injury was of the type which the law allows recovery that is - not too remote - must be foreseeable although the extent and method of the damage is irrelevant
Defendant too must accept the plaintiff as he is the egg-skull rule Smith v. Leech-Brain & Co injury causing lip cancer Intervening Acts Rouse v. Squires compared with Knightley v. Johns
1. Contributory Negligence
Where the plaintiff failed to take reasonable care of himself which contributes to his injury along with the defendants negligence. Contributory negligence is a partial defense it is the defendant who must plead contributory negligence See section 12 (1) of the Civil Law Act 1956
Where any person suffers damage as the result partly of his own
The damages will be apportioned / reduced depending upon the extent of the plaintiff share in the cause of injury See :
Jones v Livox Quarries Ramachandran a/l Mayandy v. Abdul Rahman bin Ambok
fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimants share in the responsibility for the damage
the evidence given, he has proven, prima facie, that the defendant is negligent The main purpose is to prevent injustice as otherwise the plaintiff would be required to prove details of the cause of the incident, which he may not know The maxim is not applicable when all the facts relevant to the cause of the accident are known Nevertheless - the accident wouldnt have happened if not for some negligence on the defendants part. Originated from the rule in Byrne V. Boadle Three requirements:
The thing that cause the damage must be under the defendants control The damage is something that will not happen if the defendant takes adequate precaution The cause of the accident is not known
Health
A positive psychiatric illness or physical damage as a result of physiological trauma experienced by the plaintiff due to the defendant's negligent act For the purpose of recovery of damages not necessary that the plaintiff shows direct impact or fear of immediate personal injury Claimant may recover damages arising from nervous shock resulting from injury to near relatives or fear for such injury The case of Alcock & Ors v. Chief Constable of South Yorkshire Police laid down the requirements that need to be proven to succeed in a claim for nervous shock:
It must be foreseeable that damage in the form of psychiatric illness would occur Foreseeability depends on the nature of relationship between the plaintiff and victim love and affection
The proximity between the plaintiff and the accident in time and space i.e. the plaintiff must either see, hear or be physically present at the scene of the accident immediately after the immediate aftermath test
The means by which the shock has been caused - the psychiatric harm must come through the claimant's own sight or hearing of the event or its immediate aftermath
Court allowed the plaintiff's claim as a result of seeing her daughter knocked down by the defendants lorry The plaintiff's husband and her three children were involved in a road accident caused by the defendant's negligence. The plaintiff was informed about the accident two hours after the event, and she was taken to the hospital where she was told about the death of one of her children and saw the injuries to her family in distressing circumstances. The House of Lords was unanimous in holding that the plaintiff's claim for psychiatric illness should succeed A pregnant lady after alighting from a tramcar hear noise of collision and after the accident she went to the spot, saw blood spot and got shock. Court denied her claim because it was not reasonably foreseeable that someone not closely connected to the victim would suffer nervous shock.
McLoughlin v. OBrian
Bourhill v. Young
Vicarious Liability is an exception to the principle that a person should not be held liable in absence of fault of his own. Vicarious liability refers to situation where, for example Ali is liable to Chong for damage or injury suffered by Chong due to the negligence or other tort committed by Bobby.
Ali need not have done anything wrong and need not owe a duty of care to Chong.
Most important condition for imposing a liability on Ali is the nature of relationship between Ali and Bobby Under vicarious liability - employer liable for the negligent act of his servant/ employee. The reasons why an employer has to be liable for the negligence of the employee :
Employer employ the negligent worker Employer failed to control the employee Employer benefit from the employees work - set the whole thing in motion Employer has deeper pocket
The employer will only be liable if the tort is committed by his employee/ agent If the tort is committed by independent contractor, then the employer will not be liable Several tests to determine existence of contract of service: Control test Integration Test Multiple Test
course of employment
Example of cases: Century Insurance Co. Ltd v. Northern Ireland Road Transport Board (1942) Rose v. Plenty (1976)
1. Volenti Non Fit Injuria Prevents the defendants wrongful conduct from being a breach There must be consent or assumption of risk by the plaintiff The consent or assumption of risk must be voluntary whether express or implied There must be full knowledge of the nature and extent of risk of injury Must be to the act complained of 2. Inevitable Accident Something which is not avoidable by any such precautions as a reasonable man could be expected to take Defendant must prove that what happened is beyond his control and could not be avoided by the exercise of skill and care e.g. latent defect in a vehicle