TOPIC 2: LAW OF TORT ( NEGLIGENCE)
TOPIC 2: LAW OF TORT ( NEGLIGENCE)
Types of Torts
Types of Liabilities in Tort
Primary liability: where a person who owes a duty breaches it as against another
Vicarious liability: which is the liability of an employer for a tortuous act committed by an employee in the normal course of employment.
A tort is a civil ‘wrong
Torts involve breaches of duties that are imposed by law. For example, it is understood that
no one should act in a careless manner and that if he does so and causes harm to others,
he can expect to be sued.
1.Duty of Care
. A duty of care is a legal duty imposed on a person that requires that person to take reasonable care when performing certain acts
The concept of duty of care says that we must not behave in such a careless way that we
end up causing harm or loss to others
The key to an action for negligence would then be ‘
’– a person is expected to foresee who will be affected by his actions and how will he be so affected
2 Stage Test
Was there a
(i.e. proximity) between the parties?
public policy reasons
why we should not impose a duty of care? If the answer is ‘yes’, then no duty of care will be found.
2. Breach of Duty
To breach the duty of care means that you have failed to take reasonable care to do something up to a certain standard.
Reasonable Man Test
Reasonable Man Test: the standard of care to apply is an objective standard, based on what a ‘reasonable man’ should do. This standard is objective because it is to be applied for all similar situations.
: 1. Age 2. Special Skills 3.General practise 4. Magnitude of possible harm to the Plaintiff
Res Ipsa Loquitur
(‘the thing speaks for itself’)
Where the accident is so obviously due to someone’s negligence, the courts allow the plaintiff to use the res ipsa maxim to avoid having to prove the 2nd element of breach of the duty of care.
3. Damage caused
The third element that must be established is that the Defendant’s breach of duty caused damage, injury or loss to the Plaintiff. In other words, there must be causation. If nobody was injured and no property was damaged, the Defendant cannot be sued for negligence
But For Test
Would the damage have happened BUT FOR the defendant’s negligence?” If the answer is ‘no’, the Defendant fails the test and is liable.
Remoteness of Damage
So even though causation is proved, D will not be liable for damage which is considered to be too remote from the original negligent act
3 Elements of Negligence
the Defendant owed the Plaintiff a
duty of care
breached the duty
was caused by the breach.
Tort Vs Criminal Law
A criminal law is basically an offence against the State. It would include a whole range of
crimes, from minor ones to the most serious. Because criminal law is an offence against
the State, the State through the Attorney General will prosecute the wrong doer.
A tort on the other hand, being a wrong against a private individual, will give the injured party the right to sue with the objective of obtaining a remedy from the court. The usual remedy sued for is damages (monetary compensation) but in some cases, an injunction may be more appropriate
Tort vs Contract Law
A contract is an agreement made voluntarily between 2 or more parties. Any duty that is
owed by one contracting party to the other contracting party arises from the agreement
made between them
On the other hand, a duty arising in tort is imposed externally by the law and arises
automatically. Thus, in Tort Law, a duty can even be owed to strangers.