LAW OF TORT

Prepared by Ms Mardiah Hayati Binti Abu Bakar

THE LAW OF TORTS

Winfield : a wrong the victim of which is entitled to redress

AIMS To determine when a person has to pay compensation for harm wrongfully caused. Eg, it allows P seeks monetary compensation (damages) for the injuries suffered. To determine what conduct may be stopped or regulated by order of court. Eg, It allows P seeks an injuction to prevent the occurrence or repetition of harm in the future.

EXAMPLE

A contractor violates a building code when constructing a house. The house then collapses, injuring somebody. The violation of the building code establishes negligence per se and the contractor will be found liable, so long as the contractor's breach of the code was the cause (proximate cause and actual cause) of the injury.

1)Reasonable foreseeable Duty of care 2) Direct relationship of proximity NEGLIGENCE Reasonableman test

The degree of probability of damage

Breach of duty of care

Damages

The skill

Social values

Not too remote

Magnitude of harm

Negligence

Elements of Negligence 1. Duty Of care 2. Breach of Duty Of care 3. Damage has been caused by Ds breach of duty.

1st Elements

Existence of Duty Of Care Definition: legal obligations imposed on an individual requiring that they adhere to a reasonable standard of care while performing any acts that could forseeably harm others. A Defendant will only be liable to the plaintiff in negligence if he owes the plaintiff a duty to take care EG: duty owed by drivers to the road users, duties of employers in respect of safety of their workers, duties of doctors to patients, duties of an occupier of land to visitors.

How judge determine whether there is or not a duty?

NEIGHBOURHOOD PRINCIPLE - Case : Donoghue v Stevensen P consumed a bottle of ginger-beer manufactered by D purchased by a friend. The bottle was made of dark opaque glass and P had no reason to suspect that it contained anything but pure ginger beer. While her friend pour the remainder of the contents in a tumbler, a decomposed state of a snail floated out of the bottle. The disgusting sight of such snail made her suffered shock and became ill.

DONOGHUE V STEVENSON

Held: D is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. D owes a duty to consumers and users of his products not to cause them harm. D is liable.

NEIGHBOURHOOD PRINCIPLE

Test required: A. reasonably foreseeable & fair ground B. direct relationship of proximity

1st Test: reasonably foreseeable

Whether the injury to the P was reasonably foreseeable consequence of Ds acts or omissions. It is not required that P must be identifiable by D. Enough if P is one of a class within the area of foreseeable injury. P in the zone of danger that is created by Ds carelessness and the injury must be a type that is likely to occur in the circumstances.

The plaintiff has to establish that the duty was owed to him. Bourhill v Young[1943) AC 92( pg. 34) Motorcyclist carelessly collided with another motor vehicle. P who was pregnant suffered nervous shock at witnessing the aftermath of the accident and saw blood. Held: No duty of care owed to her. She is outside the area of foreseeable danger.

2nd test: direct relationship of proximity

Whether there is a sufficient relationship of proximity or neighbourhood between the tortfeasor and the person who has suffered the loss. Bourhill v Young[1943) AC 92( pg. 34) P was not in the proximity of the bad driving of D a motorcyclist who crashed before P came on the scene. D owed duty of care to the car driver he collided with. He reasonably foresee that if he rode his bike too fast he is likely to crash into a vehicle on the road. P saw the

HELD; P not in the proximity to D, so he could not reasonably foresee that his action of riding the motor cyle negligently would affect P.

Example of reasonable

A drives his car negligently with the result that he crashes into a group of small children waiting to cross the road outside a primary school.Few persons suffers nervous shock upon viewing the incidents. It would not be just and reasonable to impose duty on the persons with no direct relationships of proximity.

Example 2

Failure to services car, breaks down, causes horrified traffic jam.Some victims of jam, might be late and received warning letter, loose a valuable contract..etc Un ended story

Breach of duty and proof of negligence

The reasonable man test Negligence is the ommission 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 prudent and reasonable man would not do. Q: Would a reasonable man have acted as the Defendant has done if the reasonable man was faced with the same circumstances as the Defendant?

Cases:Nettleship v Weston(1971)
The P gave the D driving lessons.D had been careful but on her third lesson the car struck a lamp post and P was injured.

Held: although D a learner driver, she would be judged by standard of the average competent driver. She must drive in as good a manner as a driver of skill, experience and care. She had tried to control the car to the best of her ability. But since she did not meet the required standard of care, she is liable.

Glasgow Corp v Muir{1943}

The appellants allowed a church picnic party to use their tea room on a wet day.Members of the party had to carry the tea urn through a passage where children were buying ice creams. For unexplained reason the urn was dropped and children were scalded by the tea. Whether D should have foreseen that injury would occur when he brought the urn through the passage. Held: No, because a reasonable man would not have foreseen such an accident in that

Factors determining Negligence

1. The skill which the defendant professes to have. E.g solicitor, plumber, architect Wells v Cooper[1958] The D fixed a door handle onto a door. He did the job as well as an ordinary carpenter would do it. The handle came off in the Ps hand and he was injured Held: D had exercised such care as was required of him and was not liable.

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2. the degree of probability that damage will be done: care must be taken in respect of a risk that is reasonably foreseeable. Bolton v Stone[1951] P was injured on the highway by a cricket ball hit from the Ds ground. The ball had been hit 100 yards and cleared a 17 foot fence which was 78 yards from the batsman.The evidence showed that the ball had only hit out the ground six times in the previous 30 years. Held: D not liable, the risk was so small.

3. The magnitude of harm likely

The court will take into account not only the risk of any damage to P but also the extent of damaged that is risked *** probability of the injury occuring Withers v Perry Chain Co. Ltd The P was prone to dermatitis and was given the most grease free job available. Despite this she contracted dermatitis. D employers were held not liable as they had done all that was reasonable, short of refusing to employ her at all. *** The seriousness of the injury Paris v Stepney Borough Council(1951) -employees with one blind eye should be given an extra precaution to avoid injury.

4. The importance of the object to be attained by Ds activity

The social importance or utility of the defendants actions will allow him to incur risks of injury in his undertakings. Daborn v Bath Tramways[1946] D drove left-hand drive car and due to his negligence signalling, an accident occurred. Held: D was not liable as the car was used as an ambulance during the war period. The social importance of Ds act outweighed the importance of his duty of care to othes.

3rd Element : Damages

The Ps damage must have been caused by Ds breach of duty and the damage must not be too remote.

A 50 year old man goes to hospital for a stomach operation and after the operation, it is discovered that he has suffered brain damage. To bring an action of negligence, the patient must establish that the hospital of its agents (doctors,nurses) caused him to suffer a brain damage. If following the brain damage, he undergoes severe personality changes as a result of which he losses his job, his wife divorces him and he can no longer lead an independent life, the rule of remoteness of damage will be applied to determine to what extent he can be compensated.

THE END