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Introduction to tort
Transcript of Introduction to tort
The Law of Tort
This term is derived from the Latin word tortuous which means wrong. It is a body of law that allows the injured party to recover compensation from the injuring party. Thus it allows for the imposition of civil liability for such an offence. A tort does not include a breach of contract. Thus tort is a reference to an infringement on the rights of an individual and a suit of damages is the most common tort action.
What is a "Tort"?
Tort is a legal term. It indicates a civil mistake and not a mistake of criminal nature. It refers to an injury to a person or property.
This tort is a civil wrong committed by anyone who owes a duty of care to the victim
The most common tort - Negligence
The three elements of Negligence
(1) The Duty of Care
(2) The breach of duty
Did the defendant cause
Donaghue v Stevenson - Leading tort case creating a duty of care between people outside of a contract
HL stated that every person owed a duty of care to his neighbour i.e. someone you can reasonably foresee will be injured by your acts or omissions.
Caparo v Dickman (1990).
• Was the harm or loss caused reasonably foreseeable?
• Was there a sufficient relationship of proximity between the claimant and the defendant for a duty to be imposed?
• In all circumstances is it fair, just and reasonable that the law should impose a duty on the defendant?
How do we know when a duty of care exists?
The claimant must prove that the defendant did something that a reasonable man in the circumstances would not have done, or that the defendant failed to do something that a reasonable man in the circumstances would have done.
Standard of Care – objective test. D must act with reasonable degree of care and skill expected from person with qualification D claims to have.
Lack of experience is not taken into account.
Nettleship v Weston (1971)
There must be a causal link between the breach and the damage suffered.
Barnett v Chelsea & Kensington Hospital Management Committee (1969)Facts: Widow sued the hospital for negligence after husband sent home by doctor.Decision: Hospital did owe a duty of care to examine the man and was in breach of duty by sending him home. BUT death was not as a result of the breach as he would have died anyway because there was arsenic in his tea.
The defendant must have actually caused the harm complained of
the harm must not be too remote - See "The Wagon Mound"
What is this?
A species of negligence
Its when someone who is in control of a building causes damage to their visitors
Occupiers Liability Act 1957 and
Occupiers Liability Act 1984
These statutes impose duties on the occupiers of premises in respect of the safety of the people who enter upon the land they occupy. The law makes a distinction between the duty owed to visitors and the duty owed to non-visitors (trespassers).
Liability of occupiers to visitors is governed by the Occupiers Liability Act 1957.
An occupier of land owes a common duty of care to all visitors on his premises.
The common duty of care applies in respect of personal injury and damage to property.
What is a visitor?
Visitor = a person who enters property with the express or implied permission of the occupier. The permission of a visitor may be restricted in terms of time, place and purpose.
What about non-visitors?
An occupier of premises does not owe the same duty of common care to persons who are not entitled to be on his premises, as he does to lawful visitors. A trespasser may be a burglar or a child who has climbed over railings to play on a railway line, or a person who has inadvertently strayed onto a dangerous building site.
More about this later
What should the "Occupier" do?
The occupier must take such care as is reasonable, in all the circumstances of the case, to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.
The duty of care imposed on occupiers requires them to ensure that their visitors are reasonably safe and not that the premises are reasonably safe.
In carrying out this duty, the occupier is entitled to take into account the behaviour that would reasonably be expected of the visitor.
What about if the visitor does something stupid?
- Clare v Perry
What can the occupier do to stop liability?
What about me?
However an occupier is not liable for all accidents that happen to children on his premises. The occupier can assume that a small child will be supervised by reasonable sensible parents.
What about skilled people who should know what to do?
A warning notice may help
Even if a claimant can show that a defendant‘s conduct amounted to a tort, the defendant may be able to prove that he has a full or partial defence.Contributory NegligenceSometimes when an accident occurs the claimant as well as the defendant has been negligent. If the is the case then the claimant’s entitlement to damages may be reduced.
Green v Bannister (2003)D reversed along a dark road taking care not to hit parked cars. She failed to see C who was lying in the road in a drunken stupor.Decision: D should have looked in mirror and over left shoulder and would properly have seen C and therefore was negligent. But C was 60% to blame for the accident.
Consent (Volenti non fit injuria - 'to the willing there is no injury')If the claimant expressly or impliedly consented to the defendant’s action then th defendant is not liable.
An occupier of premises does not owe the same duty of common care to persons who are not entitled to be on his premises, as he does to lawful visitors.