This document provides an overview of tort law in three parts:
1. It defines the basic elements of tort such as civil obligations and defines tort as a civil wrong. It distinguishes tort from contract, crime, and other legal areas.
2. It examines specific torts like negligence, defamation, trespass, and nuisance and how they relate to areas like personal safety, property, reputation, and economic interests.
3. It provides details on negligence torts, the duty of care, standards of care, defenses, causation, and remedies like damages. Vicarious liability and liability for occupational injuries are also discussed.
This document provides an overview of tort law in three parts:
1. It defines the basic elements of tort such as civil obligations and defines tort as a civil wrong. It distinguishes tort from contract, crime, and other legal areas.
2. It examines specific torts like negligence, defamation, trespass, and nuisance and how they relate to areas like personal safety, property, reputation, and economic interests.
3. It provides details on negligence torts, the duty of care, standards of care, defenses, causation, and remedies like damages. Vicarious liability and liability for occupational injuries are also discussed.
This document provides an overview of tort law in three parts:
1. It defines the basic elements of tort such as civil obligations and defines tort as a civil wrong. It distinguishes tort from contract, crime, and other legal areas.
2. It examines specific torts like negligence, defamation, trespass, and nuisance and how they relate to areas like personal safety, property, reputation, and economic interests.
3. It provides details on negligence torts, the duty of care, standards of care, defenses, causation, and remedies like damages. Vicarious liability and liability for occupational injuries are also discussed.
This document provides an overview of tort law in three parts:
1. It defines the basic elements of tort such as civil obligations and defines tort as a civil wrong. It distinguishes tort from contract, crime, and other legal areas.
2. It examines specific torts like negligence, defamation, trespass, and nuisance and how they relate to areas like personal safety, property, reputation, and economic interests.
3. It provides details on negligence torts, the duty of care, standards of care, defenses, causation, and remedies like damages. Vicarious liability and liability for occupational injuries are also discussed.
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Elements of law of Tort
Torts deal with civil obligations
A tort is a civil wrong It is a legal wrong as opposed to moral wrong If Chinedu commits a tort against Chioma. There is breach of Chiomas legal rights because there has been an invasion of Chiomas legal interest The law of tort operates differently from the laws of contract, crime and trusts Law of tort is a creation of common law and hence has been built up through precedents Tort is different from all these in the following respects Law of contract- based on agreement and consideration Law of trusts-arises from confidence reposed in another which enables one to entrust his property into anothers hand Law of crime Deals with offence which is punishable at the instance of the state
Torts v. Criminal
Different parties involved (no government) Different onus of proof (balance of probabilities v. beyond reasonable doubt) Nature of what you are trying to prove is different (intent v. negligence) Purpose different punishment v. compensation Remedies monetary vs. jail
Basis of Tortious Liability A tort is a civil wrong without just cause which causes an injury or harm to the other person called the plaintiff. It is founded on the consequential damage done to the plaintiff Some torts are actionable pre se( without any proof of damage) while some are not All unjustifiable harms are actionable. There is room for extension of the law of torts There are torts applicable to business and commercial transactions . These are the main preoccupation in this lecture. Vicarious Liability This is a liability imposed on one person by torts committed by another person. For instance, in master- servant relationship, there is contract of service. The Master could be vicariously liable for actions of his servant. But for a contractor where the relationship is that of independence (contract for service), the contractor is taken as an expert. Consequently the employer can not be held liable for the wrong done by the contractor. Test for determination of vicarious liability Is the employment of the employee that of a servant or an independent contractor? Test of control: Does the employer dictate how to do the works or not? Test of payment : Is the employee receiving wages and salaries? Test of power: Who has the power to hire and fire Test of integration: Is the employee an integral part of the organisation? Classification of torts Torts affecting personal safety and freedom Torts affecting property Torts affecting reputation Torts affecting economic interest Torts involving interference with judicial process Torts affecting personal safety and freedom
Deceit and passing off Conversion and detinue Torts involving interference with judicial process
Malicious prosecution Maintenance and champtery Particulars of Torts Torts of Negligence Tort of defamation Tort of trespass Tort of conversion Tort of conspiracy Tort contained in the rule of Rylands V. Fletcher Tort of nuisance Donoghue vs Steveson The court took the view that the producer of a product owed the ultimate customer a duty of care The essential features of negligence is in:
The person injured you owed you a duty of care The person did something which should not have been done or failed to do something which should have been done Damage was suffered as a result Negligence- this has been defined as a breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff. Three elements that must be present: A legal duty imposed on the defendant to take care of the plaintiff A breach of that duty A consequential damage to the plaintiff which arose from the breach
Liability for Chattels (goods) Occupiers liability Vicarious liability- master and servant Torts of relevance to Project Managers/Facilities Managers Negligence Occupiers Liability False imprisonment Nuisance Defamation Passing-off
Negligence Negligence is a civil wrong arising from a breach of legal duty to take care and which results in damage to the plaintiff, though it might not have been freely desired Elements of negligence The defendant owed the plaintiff a duty of care The defendant is in breach of that duty The plaintiff is entitled to damages These three must be proved even though Res Ipsa Loquitor( The facts speak for themselves) Neighbour Principle in Negligence Who is my neighbour at law? A neighbour is a person who is so close and directly affected by my act that I ought reasonably to have him in contemplation as been so affected when I am directing my act or omission which are called to question Standard of care Reasonable mans test Foreseability test Liable on for consequences of acts that a reasonable man would have foreseen Remoteness of damage This requires that causes and effect/consequences should have some form of relationship in order to qualify or merit the award of compensation THE ELEMENTS OF NEGLIGENCE
Duty of Care
is there a duty of care?: - whether the class of persons to which the defendant belongs owe a duty of care to the class of persons to which the plaintiff belongs? - done at a level of generality - ie. Dr. and Patient Two Part Test: 1. General Proximity: should the defendant have the plaintiff in mind when they are acting. 2. Social Policy: is there a reason why - Breach of Duty.
Given Duty of care: did the defendant fall below the standard of care that a reasonable person would have provided. Three Part test for breach of duty: 1. Who is the reasonable person to whom the defendant is to be compared? ( some times helpful to look at the class of persons defined in duty of care - ie. Reasonable Drs) 2. What is the impugned conduct? -what did the defendant do that is alleged to be negligent. 3. Balancing test what would the reasonable person have done. foreseeability of harm to plaintiff + extent of that harm VS. burden of precautions which would have prevented that harm + the social utility of the defendants conduct (rescue workers speeding to another accident strike a person idea) = liability.
. Damage
Whether the plaintiff suffered legally recognizable damage. A. Pure economic loss - damaged property B. Pure Emotional distress Whether the plaintiff suffered legally recognizable damage within a timeframe that is actionable. limitations of action acts - central question of when that period begins to run typically the moment damages are discoverable
Factual Causation - given duty, breach, damage - Whether as a matter of scientific fact the defendants breech can be said to have caused the harm of the plaintiff. - but-for test: were it not for the defendants conduct would the plaintiff have suffered the harm. - problems arise in instances of multiple defendants: multiple sufficient cause the typical answer
Remoteness/proximate cause
Whether the harm caused to the plaintiff was sufficiently closely linked to the defendants conduct to give rise for recovery. Although it could be a cause, the proximity should affect: a. Proximity of plaintiff - how close to the accident was the plaintiff b. Proximity of damage - the relation of the damages to the accident c. Intervening cause - did something happen inbetween defendants breech and the damage that broke the chain of causation d. Post-injury events - something/somebody exacerbating the plaintiffs damage after the fact; ie. Medical care Complete Defenses:
whether circumstances exist that give rise to excuses which completely excuses the payment of damages. Only a couple left: 1. Voluntary assumption of risk - volenti non fit injuria 2. Illegality - ex turpi causa non oritur action 3. Statutory defences: immunities given to public officials. Used to be that contributory negligence was a complete defence
Apportionment
should the damages be apportioned in relation to fault. Ie. Contributory negligence and how damages should be proportioned by way of contribution between joint defendants. established the same way as negligence with the exception of duty - which is assumed
Measure of damages: (the aftermath)
What sum of money will provide compensation i.e. Put plaintiff in position they would have been in 1. Pecuniary Loss - tangible loss; approximate income loss etc. 2. Non-pecuniary loss - non-tangible; pain and suffering, Etc. - courts try to provide sum that will give solace for pain and suffering etc. 3. Aggravated Damages - money to soothe feelings of humiliation, indignation, fear of repletion etc. (most likely in intentional torts) 4. Exemplary of punitive damages - what is appropriate to punish the Defendant (quite rare)
Vicarious Liability
whether another person is vicariously liable for the conduct of the defendant - employer and employee
Professional Negligence
holding out theory: f you hold yourself out to be somebody who has expertise, you will be held to those expertise. Balance between protecting patients and protecting professional autonomy i.e. not interfering in professional regulation (statutes) difference between errors and negligent errors. The reasonable professional makes one and not the other. NEGLIGENCE: DUTY OF CARE The Neighbour Principle Supervision and Prevention Government Liability and Statutes Failure to Act Pre-Natal Injury Social Host Liability . NEGLIGENCE: BREACH OF DUTY The Reasonable Person Standard The Impugned Conduct Unreasonable Risk The Mentally Disabled The Young Professional Negligence Custom Negligence and Statutory Provisions
NEGLIGENCE: FACTUAL CAUSATION Cause-In-Fact General Onus of Proof Two Negligent Defendants But Only One Cause Market Share and Simple Probability Multiple Cause NEGLIGENCE: REMOTENESS AND PROXIMATE CAUSE Directness Test Foreseeability of Plaintiff Foreseeability of Damage Nervous Shock
NEGLIGENCE: DEFENCES Apportionment Complete Defences Voluntary Assumption of Risk Illegality For example Doctors, surgeons, and dentists owe to their patients a duty in tort as well as in contract. It is expected of such a professional man that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure. Three step test: surgeon undertakes that he possesses the skill, knowledge and judgment of the average. in judging that average, regard must be had to the special group to which he belongs if the decision was the result of exercising that avg. standard, there is no liability for an error in judgment.