The Law of Tort - uni-trier.de · A wrong against the State 2. ... existing contractual...
Transcript of The Law of Tort - uni-trier.de · A wrong against the State 2. ... existing contractual...
EXTRA CLASSES THIS WEEK
Wednesday 16/05/2018:
▪ 12:00 – 14:00
▪ HS 9 (E-Building)
Thursday 17/05/2018:
▪ 12:00 – 14:00
▪ C 10 (C-Building)
INTRODUCTION
Balance of probabilities vs beyond a reasonable doubt?
Names of the parties in civil and criminal cases?
Fault: intention vs negligence?
Examples of torts/delicts?
DEFINITION – ‘CIVIL WRONG’
What is a tort?
▪ ‘A civil wrong independent of contract’
Two elements to this definition:
▪ A civil wrong;
▪ Independent of contract
What does it mean if it is a civil wrong?
▪ Differentiate a civil wrong from a crime
TORTS VS CRIMES?
Torts: Crimes:
1. A wrong against an individual 1. A wrong against the State
2. Case will be started by the individual affected (the
plaintiff/claimant)2. Case is almost always started by the State
3. Defendant will be sued in civil courts – civil action will
be brought against the defendant
3. Accused (‘defendant’) will be prosecuted in criminal
courts – accused faces criminal charges
4. If liable, the defendant will pay damages to
compensate the plaintiff4. If guilty, accused will be prosecuted/punished
5. Main purpose? To provide the victim (person who has
suffered from the infringement of a right/duty) with a
remedy to enforce their right
5. Main purpose? To maintain law and order and protect
the public
6. Branch of private law (civil law) 6. Branch of public law (criminal law)
7. Burden of proof rests with the claimant – standard of
proof is ‘balance of probabilities’
7. Burden of proof rests with the prosecution – standard
of proof is ‘beyond a reasonable doubt’
DEFINITION – ‘INDEPENDENT OF
CONTRACT’
NB!! Liability in tort law comes from either:
▪ A breach of a duty owed by members of society towards each other; or
▪ The infringement of a right of another person
Therefore, tort law protects the rights and freedoms of individuals (either their property or their reputation).
Where does liability in contract law come from?
▪ So what does it mean if tort law is independent of contract?
Like a tort, breach of contract is a civil wrong
However, liability in contract law requires a pre-
existing contractual relationship while no such
connection is necessary in a tort case
DEFINITION – ‘INDEPENDENT OF
CONTRACT’
DEFINITION -OVERLAP
Concurrent liability?
▪ Overlap between law of tort and contract law?
▪ Overlap between law of tort and criminal law?
FUNDAMENTAL PRINCIPLES OF
TORTIOUS LIABILITY
Prima Facie, there needs to be a wrongful act by the defendant which causes
damage or loss to the claimant
3 fundamental principles that need to be considered:
1. Causation;
2. Remoteness;
3. Contributory Negligence
CAUSATION
Claimant must prove a causal link
Causation is a fundamental ingredient for
tortious liability
▪ Barnett v Chelsea & Kensington Hospital Committee
introduced the ‘but-for’ test
▪ Facts of the Case?
▪ Possible problems with the ‘but-for’ test?
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CAUSATION
Problems with the ‘but-for’ test?
▪ ‘A purist might say that the crystal clear water in the well of principle has been
polluted by the beguiling influence of public policy’
McGhee v National Coal Board
▪ ‘as a matter of policy or justice… it is the creator of the risk who… must be
taken to have foreseen the possibility of damage, who should bear its
consequences’
Public policy and causation?
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REMOTENESS
One action has the potential to set into motion an unlimited amount of
consequences
Therefore, a defendant’s liability must be limited in time in space – consequences
of the original act must not be too remote
Novus actus interveniens?
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CONTRIBUTORY
NEGLIGENCE Even where a defendant’s actions are established as being
the cause of the damage/injury, this may not be the only
cause
‘Defence’ for the defendant – can be used to indicate that
the damage/injuries would have been less severe
Law Reform (Contributory Negligence) Act of 1945
▪ Froom v Butcher
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THE MAIN TYPES OF TORTS
Following torts are of relevance for the present lecture:
1. Defamation
2. Nuisance
3. Trespass
4. Negligence
DEFAMATION
The publishing of untrue statements that reflect negatively on another’s reputation
Requirements for defamation?
▪ Statement must be defamatory;
▪ Statement must refer to the claimant
❖ Eastwood v Holmes
▪ Statement must be published/communicated to a third party
Libel vs slander?
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NUISANCE
Private vs public nuisance?
Private nuisance
▪ Unreasonable interference with reasonable
enjoyment of land
▪ Private nuisance could (1) cause
physical damage to the land or
(2) disturb the claimant’s
enjoyment of the land
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NUISANCE
Public nuisance
▪ An act or omission that materially affects
the reasonable comfort and convenience
of a particular group or society in general
Not limited to interference with land
Usually a crime and not a tort
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TRESPASS
Differentiate between THREE types of trespass:
1. Trespass to goods;
2. Trespass to land; and
3. Trespass to the person
Trespass of goods involves the intentional and forceful interference with goods which are possessed by another
Trespass to land is the unjustifiable interference with the possession of land
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