TORTS SPECIFIC TORTS NEGLIGENCE

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1 TORTS A tort is a private civil wrong. It is prosecuted by the individual or entity that was wronged against the wrongdoer. One aim of tort law is to provide compensation for injuries. The goal of the compensation award or damages in tort is to restore through the award of money the injured parties to their condition before the injury. Liability of tort is dependant on making a connection between the defendant s wrongful conduct and the damage suffered by the plaintiff. Tortious liability may be imposed even though the defendant is not at fault. In torts of strict liability like the rule in Rylands v Fletcher, breach of statutory duty and conversion, the plaintiff can recover compensation for loss or damage without having to prove fault or intention on the part of the defendant. The other is where a person is held liable for the torts of another in vicarious liability. When activities of a business cause injury, tort law is available to impose damages on the business. SPECIFIC TORTS The law of tort aims at adjusting those laws which must inevitably result from the ever evolving activities of humanity. The aims and scope of tort will necessarily widen in the range and extent of socio-economic activities. Depending on the level of the technological development of the society, equivalent torts will emerge. The protection of persons from physical harm, restriction of freedom of movement and the protection of interests in intangible property especially the right to non-interference with land and chattels. The relevant torts under these protectible interests include negligence, interest in reputation like defamation, trespass in all its forms and unfair practices. NEGLIGENCE Liability imposed on persons who deviate from a certain standard or care. Conduct that falls below the level necessary to protect others against unreasonable risks of harm. It is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. Negligence means more than heedless or careless conduct whether in omission or commission. It properly connotes the complex concept of duty, breach and damages thereby suffered by the person to whom the duty was owed. Liability in negligence serves as a deterrent and helps to define what is or not acceptable conduct and therefore sets the boundaries of such behaviour. ELEMENTS OF NEGLIGENCE The three elements of tort which must be established by the plaintiff are: A duty to take care owed by the defendant to the plaintiff. A breach of duty to take care by a failure to attain the standard of care required by the law and Damage suffered by the plaintiff as a result of the breach of the duty to take care. There cannot be an action at law in the tort of negligence unless all the three elements are present 1

2 THE DUTY OF CARE The plaintiff must prove by showing that the circumstances in which his damage was caused were capable of giving rise to a duty of care and that the defendant actually owed him a duty of care on the particular facts of the case. The test for establishing duty is the neighbours test as expanded by Lord Atkin in Donoghue v Stevenson. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers question: Who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Lord Wilberforce in Anns v Merton London Borough Council introduced the two stage test for establishing the existence of a duty. First, one has to ask whether as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. The vital element in deciding if there is a duty of care is reasonable foresight. BREACH OF DUTY Once the plaintiff has established that the defendant owes a duty of care, the plaintiff must establish that the defendant is in breach of this duty. A breach of duty occurs if the defendant fails to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or does something which a prudent and reasonable man would not do. In deciding whether the defendant has failed to act as a reasonable man the following principles are applied: The likelihood of the occurrence of injury. The gravity of the injury which may be suffered. The cost and practicability of measures necessary to overcome the risk. The purpose of the defendant s acts. RESULTANT DAMAGE The plaintiff must show that the breach of duty on the part of the defendant was the cause of his or her loss. The test for establishing causation in fact is the but for test, that is but for the defendant s tortious act the plaintiff would not have been injured. Liability may be further limited by the rule for determining remoteness of damage. The test for establishing remoteness is that of reasonable foresight. 2

3 FORMS OF NEGLIGENCE ECONOMIC LOSS The general rule is that liability in negligence is restricted to physical injury to a person or property. A plaintiff may recover for economic loss but the law imposed restrictions upon liability where the claim was for pure economic loss unaccompanied by physical damage. An action lies in negligence for damages in respect of purely economic loss provided that it was a reasonably foreseeable and direct consequence of the failure in a duty of care. Recent cases indicate that pure economic loss or loss of profit per se is recoverable. NEGLIGENT MISSTATEMENT Negligent misstatements may result in economic loss. The principle is that if someone possessed of a special skill undertakes to apply that skill for the assistance of another person who relies upon such skills a duty of care will arise. The duty of care with regard to negligent misstatement was limited to cases where a special relationship existed. Such relationship will include Accountants, Lawyers, Bankers, Surveyors, Doctors etc. Four requirements for the existence of special relationship are: There must be an enquirer who consults another with special knowledge. Reliance by the enquirer likely. Such reliance is reasonable. The person of whom the enquiry was made knows reliance is likely. A person owes a duty of care not to make false statements which result in physical harm to another or his property. DEFAMATION LIBEL AND SLANDER Every man is entitled to his good name and to the esteem to which he is held by others. He has a right to claim that his reputation will not be disparaged by defamatory statements made about him to a third person without lawful justification or excuse. Defamation in an oral or some transient form is slander. Defamation in writing or some other permanent form is libel. In order to establish a prima facie case in action for libel or slander it is necessary for the plaintiff to prove: That the words complained of were published of him. That the words were defamatory of him. That the words were published by the defendant in circumstances in which the defendant is responsible for the publication. 3

4 NUISANCE The essence of the tort of private nuisance is unreasonable interference with the use or enjoyment of land. Any person who by an act unwarranted by law or by any omission to perform a legal duty inflicts damage, injury or inconvenience on all citizens or on all members who come within the sphere of its operation commits an offence of public nuisance. In the rule in Rylands v Fletcher, a person who for his own purpose brings onto his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril and he fails to so is prima facie liable for the damage which is the natural consequence of its escape. TRESPASS WRONGS TO THE PERSON Trespass to the person is a wrong committed against the personal security or personal liberty of one man by another. The varieties of trespass to the person include assault, battery, wrongful or false imprisonment and malicious prosecution. Assault is an intentional offer of force or violence to the person of another. Assault is commonly used to include battery. Battery is an act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff s consent. An action of false imprisonment lies at the suit of a person unlawfully imprisoned against the person who causes the imprisonment. Any total restraint of the liberty of the person for however short a time by the use or threat of force or by confinement is an imprisonment. In the tort of malicious prosecution the tortfeasor knowingly brings a groundless criminal proceeding against another. For example, a person who knowingly makes a false accusation of theft against another commits the tort of malicious prosecution. WRONGFUL INTERFERENCES WITH GOODS Wrongful interference with goods means conversion of goods, trespass to goods, negligence so far as it results in damage to goods or to an interest in goods. Conversion exists in three forms. First there must be a positive wrongful act of dealing with the goods in a manner inconsistent with them. A second form of conversion is committed where the goods are wrongfully detained by the defendant. The third form of conversion lies for loss or destruction of goods which a bailee has allowed to happen in breach of his duty to his bailor. Trespass to goods is an unlawful disturbance of the possession of goods by seizure or removal or by a direct act causing damage to the goods. 4

5 UNFAIR PRACTICES Where one person by unlawful means intentionally induces a second person to commit a breach of contract against a third person or prevents or hinders the performance of that contract so that that third person suffers damage, the first commits a wrong actionable at the suit of the third. An action will lie for written falsehoods which are published maliciously and are calculated in the ordinary course of things to produce special damage. A person is liable in tort if in the course of a business transaction relating to his goods or services he represents them as being those of the plaintiff in a manner calculated to deceive the public into thinking that the goods or services are those of the plaintiff. Infringements of copyright are actionable at the suit of either the owner or the exclusive licensee of the copyright. The registered proprietor of a patent or his exclusive licensee may sue anyone who infringes that patent. Infringements of registered trade marks are actionable at the suit of the registered proprietor or any registered user of the trade mark. A person who has received information in confidence is not allowed to take unfair advantage of it. REMEDIES The ordinary remedy for tortious injury is an action for damages. There is a duty upon those who have been tortiously injured to take all reasonable steps to minimise the resulting damage. There is discretion in the courts to grant injunctions compelling persons to do or restraining them from doing acts where otherwise the plaintiff will suffer or continue to suffer wrongful injury. In certain cases the law recognises the right to redress for wrongs done without recourse to the courts. Rights to use force within limits allowed for the defence of persons or of property. The remedy of abatement of a private nuisance though not favoured by the law may be resorted to provided that a breach of the peace is not caused. DEFENCES Where an injury results from natural causes which could not have been foreseen and could not have been avoided by any amount of foresight and care which could reasonably have expected it may be said to be an act of God. There is no liability for acts which constitute the performance of the acts of state. No liability in tort can arise from acts done in pursuance and within the scope of statutory powers where the powers are exercised in good faith and reasonably. Persons exercising judicial functions in a court of justice acting within its jurisdiction are 5

6 exempt from all civil liability for anything done or said by them in their judicial capacity. It is a principle of the common law that a person cannot derive any advantage from his own wrong. Therefore a plaintiff cannot recover damages where the injury was wholly his fault. Damages may be reduced by the contributory negligence of the plaintiff. Every person is justified in using reasonable force to defend himself and those under his care but only reasonably necessary force. Another defence is volenti non fit injuria. It entails unintentional infliction of injuries and the voluntary assumption of risk. Where there has been breach of duty which the plaintiff waives or his consent implying an agreement express or implied to exempt the defendant from the duty of care which he would otherwise have owed that can be a defence. There is also defence on the grounds of illegality or public policy. The plaintiff cannot recover damages for his loss by virtue of his involvement in some illegal or other conduct. 6