Elements of law of Tort

Torts deal with civil obligations

A tort is a civil wrong
It is a legal wrong as opposed to moral wrong
If Chinedu commits a tort against Chioma. There is
breach of Chiomas legal rights because there has
been an invasion of Chiomas legal interest
The law of tort operates differently from the laws
of contract, crime and trusts
Law of tort is a creation of common law and
hence has been built up through precedents
Tort is different from all these in the following
respects
Law of contract- based on agreement and
consideration
Law of trusts-arises from confidence reposed
in another which enables one to entrust his
property into anothers hand
Law of crime Deals with offence which is
punishable at the instance of the state

Torts v. Criminal

Different parties involved (no government)
Different onus of proof (balance of
probabilities v. beyond reasonable doubt)
Nature of what you are trying to prove is
different (intent v. negligence)
Purpose different punishment v.
compensation
Remedies monetary vs. jail

Basis of Tortious Liability
A tort is a civil wrong without just cause which causes
an injury or harm to the other person called the
plaintiff.
It is founded on the consequential damage done to the
plaintiff
Some torts are actionable pre se( without any proof of
damage) while some are not
All unjustifiable harms are actionable. There is room
for extension of the law of torts
There are torts applicable to business and commercial
transactions . These are the main preoccupation in this
lecture.
Vicarious Liability
This is a liability imposed on one person by torts
committed by another person. For instance, in
master- servant relationship, there is contract of
service. The Master could be vicariously liable for
actions of his servant. But for a contractor where
the relationship is that of independence (contract
for service), the contractor is taken as an expert.
Consequently the employer can not be held liable
for the wrong done by the contractor.
Test for determination of vicarious
liability
Is the employment of the employee that of a
servant or an independent contractor?
Test of control:
Does the employer dictate how to do the works or not?
Test of payment :
Is the employee receiving wages and salaries?
Test of power:
Who has the power to hire and fire
Test of integration:
Is the employee an integral part of the organisation?
Classification of torts
Torts affecting personal safety and freedom
Torts affecting property
Torts affecting reputation
Torts affecting economic interest
Torts involving interference with judicial
process
Torts affecting personal safety and freedom

Assault
Battery
False imprisonment
Negligence
Torts affecting property

Trespass
Nuisance
Torts affecting reputation

Libel
Slander
Defamation
Torts affecting economic interest

Deceit and passing off
Conversion and detinue
Torts involving interference with judicial process

Malicious prosecution
Maintenance and champtery
Particulars of Torts
Torts of Negligence
Tort of defamation
Tort of trespass
Tort of conversion
Tort of conspiracy
Tort contained in the rule of Rylands V.
Fletcher
Tort of nuisance
Donoghue vs Steveson
The court took the view that the producer of a
product owed the ultimate customer a duty of
care
The essential features of negligence is in:

The person injured you owed you a duty of care
The person did something which should not have
been done or failed to do something which should
have been done
Damage was suffered as a result
Negligence- this has been defined as a breach of
legal duty to take care which results in damage,
undesired by the defendant to the plaintiff.
Three elements that must be present:
A legal duty imposed on the defendant to take care of
the plaintiff
A breach of that duty
A consequential damage to the plaintiff which arose
from the breach

Liability for Chattels (goods)
Occupiers liability
Vicarious liability- master and servant
Torts of relevance to Project
Managers/Facilities Managers
Negligence
Occupiers Liability
False imprisonment
Nuisance
Defamation
Passing-off

Negligence
Negligence is a civil wrong arising from a
breach of legal duty to take care and which
results in damage to the plaintiff, though it
might not have been freely desired
Elements of negligence
The defendant owed the plaintiff a duty of
care
The defendant is in breach of that duty
The plaintiff is entitled to damages
These three must be proved even though Res
Ipsa Loquitor( The facts speak for themselves)
Neighbour Principle in Negligence
Who is my neighbour at law?
A neighbour is a person who is so close and
directly affected by my act that I ought reasonably
to have him in contemplation as been so affected
when I am directing my act or omission which are
called to question
Standard of care
Reasonable mans test
Foreseability test
Liable on for consequences of acts that a
reasonable man would have foreseen
Remoteness of damage
This requires that causes and
effect/consequences should have some form of
relationship in order to qualify or merit the
award of compensation
THE ELEMENTS OF NEGLIGENCE

Duty of Care

is there a duty of care?:
- whether the class of persons to which the defendant
belongs owe a duty of care to the
class of persons to which the plaintiff belongs?
- done at a level of generality - ie. Dr. and Patient
Two Part Test:
1. General Proximity: should the defendant have
the plaintiff in mind when they are acting.
2. Social Policy: is there a reason why -
Breach of Duty.

Given Duty of care: did the defendant fall below the standard of care that a
reasonable person would have provided.
Three Part test for breach of duty:
1. Who is the reasonable person to whom the defendant is to be
compared? ( some times helpful to look at the class of persons
defined in duty of care - ie. Reasonable Drs)
2. What is the impugned conduct?
-what did the defendant do that is alleged to be negligent.
3. Balancing test what would the reasonable person have done.
foreseeability of harm to plaintiff + extent of that harm VS. burden of
precautions which would have prevented that harm + the social utility of
the defendants conduct (rescue workers speeding to another accident
strike a person idea) = liability.

. Damage

Whether the plaintiff suffered legally recognizable
damage.
A. Pure economic loss - damaged property
B. Pure Emotional distress
Whether the plaintiff suffered legally recognizable
damage within a timeframe that is actionable.
limitations of action acts - central question of
when that period begins to
run typically the moment damages are
discoverable

Factual Causation
- given duty, breach, damage
- Whether as a matter of scientific fact the
defendants breech can be said to have
caused the harm of the plaintiff.
- but-for test: were it not for the defendants
conduct would the plaintiff have
suffered the harm.
- problems arise in instances of multiple
defendants:
multiple sufficient cause the typical answer

Remoteness/proximate cause

Whether the harm caused to the plaintiff was sufficiently closely linked
to the defendants conduct to give rise for recovery.
Although it could be a cause, the proximity should affect:
a. Proximity of plaintiff - how close to the accident was the
plaintiff
b. Proximity of damage - the relation of the damages to the
accident
c. Intervening cause - did something happen inbetween
defendants breech and the damage that broke the chain of causation
d. Post-injury events - something/somebody exacerbating the
plaintiffs damage after the fact; ie. Medical care
Complete Defenses:

whether circumstances exist that give rise to excuses
which completely excuses the payment of damages.
Only a couple left:
1. Voluntary assumption of risk - volenti non fit
injuria
2. Illegality - ex turpi causa non oritur action
3. Statutory defences: immunities given to public
officials.
Used to be that contributory negligence was a complete
defence

Apportionment

should the damages be apportioned in
relation to fault. Ie. Contributory
negligence and how damages should be
proportioned by way of contribution between
joint defendants.
established the same way as negligence with
the exception of duty - which is
assumed

Measure of damages: (the
aftermath)

What sum of money will provide compensation i.e. Put
plaintiff in position they would have been in
1. Pecuniary Loss - tangible loss; approximate income loss etc.
2. Non-pecuniary loss - non-tangible; pain and suffering, Etc.
- courts try to provide sum that will give solace for pain
and suffering etc.
3. Aggravated Damages - money to soothe feelings of
humiliation, indignation, fear of repletion etc. (most likely
in intentional torts)
4. Exemplary of punitive damages - what is appropriate to
punish the Defendant (quite rare)

Vicarious Liability

whether another person is vicariously liable for
the conduct of the defendant
- employer and employee

Professional Negligence

holding out theory:
f you hold yourself out to be somebody who has
expertise, you will be held to those expertise.
Balance between protecting patients and
protecting professional autonomy i.e. not
interfering in professional regulation (statutes)
difference between errors and negligent errors.
The reasonable professional makes one and not the
other.
NEGLIGENCE: DUTY OF CARE
The Neighbour Principle
Supervision and Prevention
Government Liability and Statutes
Failure to Act
Pre-Natal Injury
Social Host Liability
. NEGLIGENCE: BREACH OF DUTY
The Reasonable Person Standard
The Impugned Conduct
Unreasonable Risk
The Mentally Disabled
The Young
Professional Negligence
Custom
Negligence and Statutory Provisions

NEGLIGENCE: FACTUAL CAUSATION
Cause-In-Fact
General Onus of Proof
Two Negligent Defendants But Only One Cause
Market Share and Simple Probability
Multiple Cause
NEGLIGENCE: REMOTENESS AND PROXIMATE CAUSE
Directness Test
Foreseeability of Plaintiff
Foreseeability of Damage
Nervous Shock

NEGLIGENCE: DEFENCES
Apportionment
Complete Defences
Voluntary Assumption of Risk
Illegality
For example
Doctors, surgeons, and dentists owe to their patients a duty in tort
as well as in contract. It is expected of such a professional man that
he should show a fair, reasonable and competent degree of skill; it is
not required that he should use the highest degree of skill, for there
may be persons who have higher education and greater advantages
than he has, nor will he be held to have guaranteed a cure.
Three step test:
surgeon undertakes that he possesses the skill, knowledge and
judgment of the average.
in judging that average, regard must be had to the special group to
which he belongs
if the decision was the result of exercising that avg. standard, there
is no liability for an error in judgment.