TORT

Definition

Tort is unprivileged act of failure to act, independent of a contract, that causes injury to a legally protected interest of another and subjects the person committing the act to liability for damages in a civil suit

Duty of Care

History

1. Donoghue v Stevenson ( 1932 ): ginger beer

2. Anns v Merton London Bourough Council ( 1978 ): 2 stage test, stage 1 proximity test, stage 2 is there any reason that duty of care shld not be imposed

3. Murphy v Brentwood District Council ( 1990 ): Anns test overruled, Economic loss not allowed to be claimed

4. Ross v Cauters ( 1980 ): Will, claim for economic loss 

3 factors to decide to impose duty of care:

• loss must be reasonably foreseeable
• there must be a proximate relationship between plaintiff and defendant
• fair, just, reasonable that law shld impose duty of care ( imposing duty of care would not lead to risk of unlimited liability of an indeterminate amt to an unlimited class of person )

Economic loss

Reasons why not allowed to claim

• fear of floodgate, indeterminate liability to indeterminate amt to indeterminate class
• undermine the established rules and principles of law of contract

Situations that economic loss can be claimed

• economic loss consequential upon physical injury or property damage ( loss of earnings due to injury )
• he can bring himself within scope of the case Hedley Byrne & Co LTD v Heller & Partners ( bank give wrong info )
  • defendant voluntarily assumes a responsibility towards plaintiff
  • plaintiff reasonably relied upon the defendant

Reasonability test

How to establish these factors of responsibility test:

• Purpose of statement was communicated
• Relationship between advisor, advisee or any relevant 3rd party
• Size of class to advisee belongs
• State of knowledge of advisor
• Reliance by advisee
• Special Skills
  • Smith v Eric S Bush ( 1990 ) ( surveying of the house ) and Capro v Dickman ( 1990 ) ( financial account )
  • 3 factors to consider special skills
    • purpose for which statement was made
    • state of defendant knowledge
    • reeasonableness of plaintiff reliance upon defendant statement

Breach of Duty

3 factors:

• reasonable man
• foreseeability ( harm to plaintiff was not foreseeable )
• magnitude of risk ( although risk foreseeable , but possibility of harm is very unlikely )
  • Bolton v Stone ( 1951 ) ( cricket ball )
  • Hilder v Associated Portland Cement manufacturers Ltd (football )
  • Haley v London Electricity Board ( blind person )

Factors in considering negligence of defendant

• utility of defendant’s activity ( higher, less liable )
  • Watt v Herfordshire County Council ( 1954 )
• Practicality of precaution ( cost to take precaution too high, not negligent )
• Common practice
• Professional
• Proof of breach ( plaintiff has to show that defendant is negligent )
• Res Ipsa Loquitur ( Scott v London and St Katherine Docks Co )
  • 3 factors to decide
    • defendant in control of the thing that caused injury
    • accident would not have occurred in the ordinary course of events without negligence
    • no explanation for the accident

Causation

• Liability only if the plaintiff’s loss is due to negligence of the defendant
• “ but for” test: to decide if loss would have occurred due to defendant’s negligence
• Situations that not full liability
  • Preexisting condition ( Cutter v Vauxhall Motors Ltd ( 1971 ), plaintiff had a pre accident condition of a leg illness )
  • Omission to act ( McWilliams v Sir William Arrol & Co Ltd ( 1962 ) safety belt )
  • Negligence materially increase risk

Remoteness of Damage 
- after establishing duty of care, consider now whether loss suffered by plaintiff is one which is recoverable in negligence

Situations not liable

• not liable for all loss which flows from breach of duty of care ( The Wagon Mound (1961 ), furnace oil leak to harbour and the oil ignite causing a fire )
• egg-shell skull rule ( cannot claim that he would have suffered less if he did not have abnormal health conditions )
• Intervening acts ( Novus actus interveniens ) 
  • Act or event intervened to break chain of causation which was set in motion by defendant’s negligence
  • Not liable where conduct of plaintiff amt to novus actus interveniens
    • If an injured party acts unreasonably, cannot hold defendant liable injury due to his act
    • McKew v Holland & Hannen & Cubitts ( Scotland ) Ltd ( 1969 )
    • Wieland v Cyril Lord Carpets ( 1969 )
• damages suffered is the result of an act of a kind which is independent of negligence of the defendant
  • Carslogie Steamship Co v Royal Norwegian Government ( ship damaged and repaired, then go out to sea and damaged, not liable )

Contributory Negligence

When damage suffered is caused partly by own negligence and partly by negligence of defendant, then damages which defendant liable is only for his part

( Butterfield v Forrester ( 1809 )) 

Defendant’s defence of contributory negligence

2 factors to prove

• plaintiff at fault
• plaintiff’s negligence was cause of damage which he suffered
  • Jones v Livox Quarries
  • The Teng He 2000

3 situations to prove contributory negligence is difficult

• Child ( difficult to set a age that one is negligent )
• workman sue employee for breach of statutory duty ( employee unlikely to be guilty of contributory negligence )
  • unless employee did a foolish thing
• plaintiff is placed in a imminent danger by the negligence of the defendant
  • Jones v Boyce ( coach and passenger )

Volenti Non Fit Injuria

Used as defence for defendant against plaintiff

Plaintiff knew of the risk of harm or injury and had voluntarily submitted to that risk

Situations that volenti non fit injuria is allowed

• must be in the position to choose freely and not under any constraint, yet choose to take the risk, plaintiff is at fault too
  • Eg plaintiff not under pressure at work and adopt a dangerous method of work
• no real danger to the plaintiff who attempts a rescue
• Plaintiff consented to the risk, mere knowledge by plaintiff not enogh

Situation that volenti non fit injuria NOT allowed

• plaintiff attempts to rescue another ( Haynes v Harwood ( 1935 ) police injured while trying to protect horse from injuring bystanders )
• plaintiff’s job is to try to prevent injury inflicted on others ( Chadwick v British Transport Commission )

Breach of Statutory Duty

• defendant breach his statutory duty, gives plaintiff cause of action in tort

Situations that breach of statutory duty gives plaintiff cause of action in tort

• construction of the statue, does the construction gives plaintiff the right of action
• is there provision of remedies in the Act ? If there is no remedy given for the breach of duty, it will give rise to a cause of action in tort. If there is remedy, it is harder to show that it will give rise to cause of action in tort
• a person who is the subject of statutory duty cannot discharge the duty by entrusting responsibility of performance to another party

Defences

• defence of volenti is not allowed
• defence of contributory negligence is available for only some cases

Employer’s Liability

Employers owe certain duties to employees

4 principal duties ( duties are personal nondelegable duties )

• employer owes duty to employee to select competent employee
• employer owes duty to employees to provide properly maintained plants and equipment
• employer is under duty to provide safe place of work for employees
• employer is under duty to provide employees with safe system of work

Vicarious Liability

Render employer liable to a 3rd party for the damage done to 3 party by the tort of his employee during the period of his employment

2 conditions to be satisfied

• there must be an employment relationship
• tort committed by emplyoee referable to the relationship between employee and employer

Test used to distinguish between employee and independent contractor

• control
  • employee is one who is subject to the command of the master as to the manner in which he shall do the work
  • Yewens v Noakes ( 1880 )
• Business integration test
• 3 condition
  • employee agree to provide work and skills to emplyoers in return of a wage
  • employee directed to the mode of performance to such a degree to make the other his employer
  • terms of contract consistent with being a contract of employment

Exceptions to condition that employer liable for employee’s tort during period of employment

• employee doing an unauthorised act in authorised manner

Independent contractor liability

• employer not liable to independent contractor’s tort

Exceptions

• employer authorised contractor to commit tort
• employer negligent in choosing the contractor who is not competent and fails to instruct him or fails to check the work
• statute law impose employer duty of care which cannot be discharged performance to independent contractor
• imposing of nondelgeable duties

6 non delegable duties

• strict liability at common law
• in doing work that is extra hazardous
• escape of fire
• work  of  contractor is done in places to which public has access
• safety of employees
• not liable for collateral or casual negligence of contractor