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LECTURE 8

The Law of Tort

LAW OF TORTS
A wrongful act other than a breach of contract for which relief may be obtained in the form of damages or an injunction
http://www.merriam-webster.com/dictionary/tort

A wrongful act or an infringement of a right (other than under contract) leading to legal liability.
http://www.askoxford.com/concise_oed/tort?view=uk

A tort is a form of Civil (Social) Wrong A tort is the unlawful interference (meddling or intruding) with an individual's person, property or economic interests, in certain circumstances. The law of Torts is concerned with the infliction (cause) of various forms of injury upon the person's interests.
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1 Injuria (wrong) and Damnum (Demage Demage) )


http://www.scribd.com/doc/8406900/legal-environment-of-business

Tort A civil wrong . . . for which a remedy may be obtained, usually in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another Damage
Nominal Damages- Breach of contract that carries no substantial loss, nominal amount of damages awarded. Substantial Damages- These represent the measure of the loss sustained by the injured party. Despite the name they can be quite small

Damnum Sine Injuria


Loss not cause by wrong (Damage occurred without legal injury). E.g. Financial loss to a rival school

Injuria Sine Damnum


Legal wrong done and damage (actionable) could be recovered without proof of any loss E.g. libel, trespass (entering a property illegally)
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1.2 Motive
In tort, unlike crime, it is not usually necessary to prove anything about the defendants state of mind.

A good motive (purpose , reason or intention) will not excuse a tortious (wrongful) act and a bad motive (malice or harmful act) will not turn an innocent (not guilty) act into a tortious (wrongful) one. There are few exceptions such as the tort of malicious prosecution where there must be evidence of malice.

1.2 Motive Contd Mayor of Bradford v Pickles 1895


The facts. P wished the Bradford Corporation to buy his land, adjoining the corporations water reservoir, at a very high price. He sank a shaft on his land to divert (redirect) the flow of subterranean (underground) water through it (as he was legally entitled to do). As a result less water flowed into the reservoir and it was discoloured. The corporation sued for an injunction, (ban or restriction) a court order to P to desist (stop). Decision: the action must fail. P was exercising his rights as a landowner and was not infringing any rights of the corporation. It was immaterial that the corporation had suffered loss and that Ps express motive was to inflict loss.
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2 Remoteness of damages
Remoteness of Damage a breach creating a chain of events that has considerable effect. In ordinary circumstances the damages claimed are those that arise from immediate damage. If the contract specifies the extent of liability then no question of consequential damages arise
- http://www.google.co.uk/search?sourceid=navclient&hl=en-GB&ie=UTF8&rlz=1T4GZEZ_en-GBSG227SG227&q=powerpoint+remoteness+of+damages

Remoteness
Even if the breach of duty causes the injury/damage, the injury must not be too remote For example, Claudia travels to work in London The only convenient way is by train from her local station. One day she finds that a train has been derailed (overturned) outside the station and blocked the line. Therefore, she has to return home. During the morning an robber breaks into her home and shoots her in the leg.
It would be natural for her to say, I was absent from work yesterday because my train was derailed. But it would not be natural for her to say, I was shot in the leg yesterday because my train was derailed. However, it is true that, if there had been no derailment, she would not have been at home and would not have been shot. There is, however, a feeling that the link between the shooting and the derailment is not close enough. In legal language, the shooting is too remote a consequence of the derailment.

2a Novus Actus Interveniens


If the sequence of cause and effect includes a new act (called a novus actus interveniens) of a third party or of the claimant, it may terminate the defendants liability at that point: further consequences are too remote and he is not required to pay compensation for them. But where the intervening act is that of a third party who could be expected to behave as he did in the situation arising from the defendants original wrongful act, the intervening act does not break the chain. ( e.g. A is liable to D in Scott v Shepherd 1773)
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2a Novus Actus Interveniens Contd


Scott v Shepherd 1773
The facts: A threw a lighted firework cracker into a crowded market. It landed on the stall of B who threw it away. It then landed on the stall of C who threw it away and it then hit D in the face and blinded him in one eye. D sued A. Held: There was no break in the chain of causation from As intentional wrongful act despite that the fact that it was C who actually threw it so it hit D. A was liable to D.
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2a Novus Actus Interveniens


The question of remoteness (distance) and causation can arise where some new event occurs after the negligent event. For example, Li negligently collides with Yis car and injures her. On the way to the hospital the ambulance driver crashes into a tree and causes Yi severe injuries. Is Li liable not only for the original injuries but also for the more serious later injuries caused by the ambulance driver?

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Novus Actus Interveniens (cont.)


This is the problem of a new and intervening (superseding) cause The technical name for this is novus actus interveniens. Clearly if it had not been for Lis negligence Yi would not have been in the ambulance and would not have suffered further injuries.
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Novus Actus Interveniens (cont.)


Therefore they were in a factual sense caused by the original negligence: but were they too remote? Note: this is different from a situation where a mans leg was injured by a car and then by being shot In that situation, we were concerned with whether the driver of the car should continue to be liable for his original negligence Here, we are asking if the negligent person should also be liable for the new injury?
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2b Foreseeable Consequences - Reasonable foresight

A defendant is not liable for consequences which are too remote (far off) but he can be liable for foreseeable consequences It is not necessary for the defendant to foresee how severe the injury could be Nor does the defender have to foresee the exact way in which the injury could be caused

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2b Foreseeable Consequences - Reasonable foresight

The Wagon Mound 1961


The facts: A ship (the Wagon Mound) was taking on furnace oil in Sydney harbor. By negligence oil was spilled onto the water and it drifted to a wharf 200 yards away was being used to repair another ship. The owner of the wharf at first stopped work because he was advised that sparks from a welding torch were unlikely to set fire to furnace (a place characterized by intense heat) oil. Safety precautions were taken. A spark fell onto a piece of cotton waste floating in the oil and this served as a wick (a bundle of soft or loose threads), thereby starting a fire which caused damage to the wharf. The owners of the wharf sued the charterers (hirers) of the Wagon Mound, basing their claim on an earlier decision that damage caused by a direct and uninterrupted sequence of physical events is never too remote even though it could not reasonably be foreseen.
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2b Foreseeable Consequences - Reasonable foresight

The Wagon Mound 1961 (contd)


Decision: the claim must fail. The earlier decision was overruled and the reasonable foresight test was laid down. down . Pollution was the foreseeable risk: fire was not. This was a decision of the Privy Council on appeal from Australia and as such only a persuasive precedent for English courts. But as it was a decision of the most senior English judges, it is always applied in cases where the claim is for negligence.

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Remoteness of Damage: Reasonable Foreseeability


Hughes v Lord Advocate
Some workmen took a break, leaving a manhole cover off a hole ( hole with a cover). However, they covered the hole with a plastic tent and placed gas lights round the tent (marquee or gazebo) to warn people A child took a lamp into the tent. He tripped knocked the lamp into the hole The lamp caused an explosion in the hole and the boy was burned The court decided that the risk of the boy being burned by the lamp was foreseeable It didnt matter that the way in which it occurred (the accident) could not be foreseen
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Remoteness of Damage: Reasonable Foreseeability Doughty v Turner Manufacturing [1964]


The Facts: An asbestos (chemical resistant/fibrous mineral) cement lid accidentally fell into a cauldron (a large kettle/boiler) of sodium cyanide at a temperature of 800 degrees centigrade. The intense heat caused a chemical change in the asbestos lid as a result of which there was an explosion. The claimant was injured by the eruption of molten (melted) liquid. The chemical reaction leading to the explosion was previously unknown to science.

Held: A splash of sodium cyanide was foreseeable but a violent explosion was not. The result was unforeseeable as no one knew it could happen and therefore too remote.
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Remoteness of Damage: Reasonable Foreseeability

In cases of physical injury which is more serious than would normally be expected because the plaintiff proves to be abnormally vulnerable, the defendant is liable for the full amount if injury done. This is the thin skull (or eggshell skull) principle: if A taps B on the head and cracks Bs skull because it is abnormally thin, A is liable for the fracture.
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Remoteness of Damage: Reasonable Foreseeability


Smith v Leech braine & Vo 1962
The facts: A workman was near a tank of molten zinc (white metallic element) in which metal articles were dipped to galvanise (coat) them. One article was allowed to slip and the workman was burnt on the lip by a drop of molten zinc. The burn activated latent cancer from which he died three years later. His widow sued for damages. Decision: Damages for a fatal accident would be awarded. Some physical injury (the burn on the lip) was a foreseeable consequence. The defendants must accept liability for the much more serious physical injury (cancer) caused by their negligence. If the claimant suffers avoidable loss because his lack of resources prevents him from taking costly measures to reduce his loss, he may still recover damages for it: Martindale v Duncan 1973
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Vicarious (in place of another person) Liability

Definition
Employers are responsible for the tortious acts of their employees in the normal course of their employment

Tortfeasor:
a person who commits a tort

Joint and several Liabilities


One person commits a tort, another person be liable jointly or even separately on his own (tortfeasor disappear)
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Vicarious Liability

Employees relationship
Some Tests: 1. Control test

employer control over the way in which the employee performs his duties

2.

Integration test

Course of employment Only liable for the employees torts committed in the course of employment. Test - Whether the employee was doing the work for which he was employed and cases:
1. Limpus v London General Omnibus 2. 3. 4. 5. 6. 7.

employee is so skilled that he cannot be controlled in the performance of his duties

3.

Multiple test

employee or entrepreneur

4.

Other factors

Co. Beard v London General Omnibus Co. :General electric service ltd v Kingston and St. Andrew Corporation Century Insurance v Northern Ireland road transport board Twine v Bean Express Rose v Plenty Lyold v Grace smith & Co
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Vicarious Liability

Employees relationship
THE CONTROL TEST Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) 1947

The facts: Stevedores (loading and unloading of vessels) hired a crane with its driver from the harbour board under a contract which provided that the driver (appointed and paid by the harbour board) should be the employee of the stevedores. Owing to the drivers negligence a checker was injured. The case was concerned with whether the stevedores or the harbour board were vicariously liable as employers. Decision: In the House of Lords, that the issue must be settled on the facts and not on the terms of the contract. The stevedores could only be treated as employers of the driver if they could control in detail how he did his work. But although they could instruct him what to do, they could not control him in how he operated the crane. The harbour board (as general employer) was therefore still the drivers employer

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Vicarious Liability

Employees relationship
THE INTEGRATION TEST (was skilled employee appointed and assigned to his duties by employer?)

Cassidy v Ministry of Health 1951


The facts: The full-time assistant medical officer at a hospital carried out a surgical operation in a negligent fashion. The patient sued the Ministry o Health as employer. The Ministry resisted the claim arguing that it had no control over the doctor in his medical work.

Decision: In such circumstances the proper test was whether the employer appointed the employee, selected him for his task and so integrated him into he organisation. If the patient had chosen the doctor the Ministry would not have been liable as employer. But here the Ministry (the hospital management) made the choice and so it was liable.
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Vicarious Liability

Employees relationship
THE MULTIPLE TEST (is the employee working on his own account?)

Ready Mixed Concrete (South East) v Ministry of Pensions & National Insurance 1968
The facts: The driver of a special vehicle worked for one company only in the delivery of liquid concrete to building sites. He provided his own vehicle (obtained on hire purchase from the company) and was responsible for his maintenance and repair. He was free to provide a substitute driver. The vehicle was painted in the companys colours and the driver wore its uniform. He was paid gross amounts (no tax etc deducted) on the basis of mileage and quantity delivered as a self-employed contract. The Ministry of Pensions claimed that he was in fact an employee for whom the company should make the employers insurance contributions.
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Vicarious Liability

Employees relationship
THE MULTIPLE TEST (is the employee working on his own account?)

Ready Mixed Concrete (South East) v Ministry of Pensions & National Insurance 1968 contd...

Decision: In such cases the most important test is whether the worker is working on his own account (the entrepreneurial test or multiple test). On these facts the driver was a self-employed transport contract and not an employee.

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Vicarious Liability

Employees relationship
Other significant factors are as follows:
a) Does the employee use his own tools and equipment or does the employer provide for them? Does the alleged employer have the power to select or appoint its employees, and many it dismiss them. Payment of salary is, as mentioned above, a fair indication of there being a contact of employment. But there are exceptions. A person may still be an employee if he is paid no salary but derives his income solely from commission or tips. A person may receive a salary but not be an employee- for instance, Members of Parliament. Working for a number of different people is not necessarily a sign of selfemployment. A number of assignments may be construed as a series of employments
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b)

c)

d)

Vicarious Liability

Employees relationship
In difficult cases, the court will also consider whether the employee can delegate all his obligations (in which case, here is no contract of employment), whether there is restriction as to place of work, whether there is an obligation to work and whether holidays and hours of work are agreed.

OKelly v Trusthouse forte Plc 1983


The facts: the employee was a regular casual working when required as a waiter in the banqueting department of the Grosvenor Hotel. There was an understanding that he would accept work when offered and that the employer would give him preference over other more casual employees, though they were all paid at he same rate. The industrial tribunal held that there was no contract of employment because the employer had no obligation to provide work and the employee had no obligation to accept work when offered. The Employment Appeal Tribunal however held that there had been a sequence of contracts of employment on each occasion.
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Vicarious Liability

Employees relationship
In difficult cases, the court will also consider whether the employee can delegate all his obligations (in which case, here is no contract of employment), whether there is restriction as to place of work, whether there is an obligation to work and whether holidays and hours of work are agreed.

OKelly v Trusthouse forte Plc 1983


The facts: the employee was a regular casual working when required as a waiter in the banqueting department of the Grosvenor Hotel. There was an understanding that he would accept work when offered and that the employer would give him preference over other more casual employees, though they were all paid at he same rate. The industrial tribunal held that there was no contract of employment because the employer had no obligation to provide work and the employee had no obligation to accept work when offered. The Employment Appeal Tribunal however held that there had been a sequence of contracts of employment on each occasion.
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Vicarious Liability

Employees relationship
OKelly v Trusthouse forte Plc 1983 (contd...) Decision: the Court of Appeal reinstated the finding of he industrial tribunal since it was a reasonable conclusion drawn from the particular facts. Whether there is a contract of employment is a question of law but it depends entirely on the facts of each case; here there was no mutuality of obligations and hence no contract.

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Vicarious Liability

Employees relationship
The Course of Employment
The employer is only liable for the employees torts committed in the course of employment. Broadly, the test here is whether the employee was doing the work for which he was employed. If so the employer is liable even in the following circumstance.

Limpus v London General Omnibus Co 1862


The facts: The driver of an omnibus (a long motor vehicle) intentionally drove across in front of another omnibus and caused it to overturn. The bus company resisted liability on the ground that it had forbidden its drivers to obstruct other buses. Decision: the driver was nonetheless acting in the course of his employment . The company was liable to L who was injured in he accident.
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Vicarious Liability

Employees relationship
The Course of Employment (contd...) Beard v London General Omnibus Co 1900
The facts: The same employer forbade bus conductors to drive buses. A bus conductor caused an accident while reversing a bus. Decision: the employers instructions served to demarcate the limits of the conductors duties. He was not, when driving, doing the job for which he was employed and so the employers were not liable to the person who was injured as a result of his actions.

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Vicarious Liability

Employees relationship
The Course of Employment (contd...) General Engineering Services Ltd v Kingston and St Andrew corporation 1988
The facts: Firemen were involved in a go-slow policy in support of a pay claim and therefore took longer to reach a fire at the claimants premises. The premises were destroyed as a result. Decision: the employees were not employed to proceed to a fire as slowly as possible, thus their conduct amounted to an unauthorised act

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Vicarious Liability

Employees relationship
The Course of Employment (contd...)
While engaged on his duties, the employee does something for his own convenience.

Century Insurance v Northern Ireland Road Transport Board 1942


The facts: A driver of a petrol tanker lorry was discharging petrol at a garage. While waiting he lit a cigarette and threw away the lighted match. There was an explosion. Decision: the employer was liable since the driver was, at the time of his negligent act, in the course of his employment.
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Vicarious Liability

Employees relationship
The Course of Employment (contd...)
If the employer allows the employee to use the employers vehicle for the employees own affairs, the employer is not liable for any accident which may occur. There is the same result when a driver disobeys orders by giving a lift to a passenger who is injured.

Twine v Beans Express 1946


The facts: In this case there was a notice in the drivers part of the van that the firms drivers were forbidden to give lifts. The passenger was killed in an accident. Decision: the passenger was a trespasser and ain offering a lift the driver was not acting in the course of his employment. The driver was liable personally, not the company.
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Vicarious Liability

Employees relationship
The Course of Employment (contd...)
Contrast this with:

Rose v Plenty 1976


The facts: The driver of a milk float disobeyed orders by taking a 13 year old boy round with him to help the driver in his deliveries. They boy was injured by the drivers negligence. Decision: the driver was acting in the course of his employment. The boy was not a mere passenger but was assisting in delivering milk. Therefore the company could be held liable for the drivers actions.

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Vicarious Liability

Employees relationship
The Course of Employment (contd...)
If the employee, acting in the course of his employment, defrauds a third party for his own advantage the employer is still vicariously liable

Lloyd v Grace Smith & Co 1912


The facts: L, was interviewed by a managing clerk employed by a firm of solicitors and agreed on his advice to sell property with a view to reinvesting the money. She signed two documents by which (unknown to her) the property was transferred to the clerk who misappropriated the proceeds. Decision: the employers were liable. It was no defence that acting in the course of his employment the employee benefited himself an not them (i.e. the company).
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Independent contractors
Normally, the person who engages an independent contractor is not liable for the latters tortious acts. Generally, independent contractors are liable for their own torts. However, an independent contractor, is vicariously liable for torts in the following circumstances. The operation
creates a hazard is exceptionally risky (Honeywill & Stein v Larkin Bros 1934) is one for which there is strict liability

The duty is personal. For example, an employer has a common law duty to his employees to take reasonable care in providing safe plant and a safe working system. If he employs a contractor he remains liable for any negligence of the latter in his work. Negligence in selecting a contractor who is not competent to do the work entrusted to him.
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Independent contractors
Case example for operation is exceptionally risky:

Honeywill & Stein v Larkin Bros 1934 The facts: Decorators who had redecorated the interior of a cinema brought in a photographer to take pictures of their work. The photographers magnesium flare set fire to the cinema. Decision: in commissioning (granting of authority) an inherently (inseparable element) risky operation through a contractor the decorators were liable for his negligence in causing the fire.

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4 STRICT LIABILITY
The defendant is liable because he acted intentionally or at least negligently. May escape liability if he shows that he acted with reasonable care. ( except breach of an absolute duty: the defendant is liable even though he took reasonable care). Test Rylands v Fletcher

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4 STRICT LIABILITY
Rylands v Fletcher
The facts: F employed competent contractors to construct a reservoir to store water for his mill. In their work the contractors uncovered old mine workings (old disused mines shafts) which appeared to be blocked with earth. They did no more to seal them off and it was accepted at the trial that there was no want of reasonable care on their part. When the reservoir was filled, the water burst through the workings and flooded the mine of R on adjoining land. Decision: F was liable for the damage suffered by R, and the principle quoted above was laid down.

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5 DEFENCES TO AN ACTION IN TORT cont..

5.1 Consent
Volenti non fit injuria (no wrong is done to a person who consents to it) is the maxim which describes consent as a defence in tort (sometimes abbreviated merely to volenti). It must however be true consent, which is more than mere knowledge of a risk, and also a consent which is freely given. In some cases, the plaintiff expressly consents to what would otherwise be a wrong. For example a hospital patient awaiting a surgical operation is asked to give his written consent to the operation. But more often the consent is merely the voluntary acceptance of a risk of injury. Another example is if , as a boxer, you are punched and injured, no tort is committed; similarly, if you are injured as spectator s a result of the sporting activity, there is no cause of action
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5 DEFENCES TO AN ACTION IN TORT cont..

ICI v Shatwell 1965


The facts: Two experienced shotfirers (blasters) were working in a quarry. Statutory rules imposed on them (not their employer) a duty to ensure that all persons nearby had taken cover before a dangerous test was carried out. As their electric cable was too short they decided to carry out the test without taking cover before doing so. There was a premature explosion and both were injured. They sued the employer. Decision: They had consented to the risk. The employer was not liable since it had not been negligent nor had it committed or permitted a breach of statutory duty over safety procedures. The injured men were trained for their work and properly left to carry out safety procedures of which they were well aware.
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5 DEFENCES TO AN ACTION IN TORT cont..


It is important that the consent of the plaintiff to the risks involved must be either written, oral or be able to be implied from the circumstances. The consent must be genuine, obtained without any force or compulsion. Mere knowledge of the risks involved is not enough to constitute consent.

Smith v Baker & Sons 1891


The facts: S was put to work by B (his employer) in a position where heavy stones were swung over his head on a crane. Both S and B were aware of the risk. S was injured by a failing stone. Decision: S could recover damages. In working in circumstances of known risk he was not deemed to consent to the risk of the employers negligence. This principle has been developed in later cases to impose on the employer a common law duty to provide a safe working system.
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5 DEFENCES TO AN ACTION IN TORT cont..


In other circumstances, it has to be decided on the facts how far knowledge implies consent

Morris v Murray 1990


The facts: The claimant and defendant spent all afternoon drinking together with another man. Despite the fact that the weather was poor, the two decided to go flying in a plane owned by the defendant, who piloted it. He took off downwind and uphill; in such conditions a different runway into the wind should have been used. The plane crashed, killing the defendant and severely injuring the claimant, who sued the defendants estate. His administrators claimed volenti non fit injuria and/or contributory negligence on the part of the claimant. .
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5 DEFENCES TO AN ACTION IN TORT cont..

Morris v Murray 1990 (Contd...)


Decision: Right from the beginning the drunken escapade (a reckless adventure) was fraught (filled) with danger and. Although drunk, the claimant knew what he was doing. It was very foreseeable that such an escapade would end tragically and so, by embarking on the flight, the claimant had implicitly waived his rights in the event of injury consequent on the deceaseds failure to fly with reasonable care.

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5 DEFENCES TO AN ACTION IN TORT cont..

5.2 Rescue cases


A person who accepts a risk in order to effect a rescue does not lose high rights against the defendant if he is injured since his consent to the risk was constrained and not freely given. But the principle only applies when the risk is taken in order to safeguard others from the probability of injury for which the defendant is responsible.
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5 DEFENCES TO AN ACTION IN TORT cont..

5.2 Rescue cases


A dangerous situation is created by the defendants negligent act and the plaintiff decides to act to save or protect lives or injury to others from the danger created and in doing so is thereby injured. If the plaintiff brings an action for negligence against the defendant, can the latter plead the defence of volenti non fit injuria? (no
wrong is done to a person who consents to it)
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5 DEFENCES TO AN ACTION IN TORT cont..

Haynes v Harwood & Son 1935


The facts: The defendants driver left his horse-drawn van unattended in a street. The horses bolted (sudden escape) and a policeman (the claimant) ran out of the nearby police station to stop the horses since there was risk of injury to persons, including children, in the crowded street. He suffered injury in taking this action. The defendant pleaded volenti (consent) Decision: the policeman (for the reasons given above) had not forfeited (lost) his claim by exposing himself to the risk. #The defence of volenti non fit injuria did not apply as mere knowledge of the risk involved did not make the policeman a volunteer who acted willingly.
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5 DEFENCES TO AN ACTION IN TORT cont..

In contrast, in situations where no real emergency exists as there is no imminent danger to anyone, then any action of a person is considered gratuitous (uncalled for or unjustified) and voluntary and the defence of volenti non fit injuria will succeed.
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5 DEFENCES TO AN ACTION IN TORT cont..

Cutler V United Dairies 1933


The facts: The plaintiff was injured when he tried to stop a bolting (sudden run / escape) horse drawing a milk cart down a quiet country road. There was no danger or urgency demanded by the circumstances and therefore the plaintiff was considered to have acted freely and voluntarily and the defence of volenti non fit injuria provided a complete defence.

# Course book Decision: the spectator had consented to the risk. He was not impelled (press on / constrain to action) by the need to save others from danger. His claim was barred (stripped) by his consent.

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5 DEFENCES TO AN ACTION IN TORT cont..

Sylvester v Chapman Ltd (1935)

The plaintiff who was mauled (attacked/ clawed) by a leopard when he crossed a barrier to put out a lighted cigarette end, was not entitled to damages as he was considered to be a volunteer; there were keepers available to do the job without risk.

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5 DEFENCES TO AN ACTION IN TORT cont..

5.3 Unavoidable Accident


Accident is a defence only if it could not have been foreseen nor avoided by any reasonable care of the defendant (can only claim that it is an accident if the situation is unforeseeable).

Stanley v Powell 1891


The facts: The plaintiff and defendant were both members of a pheasant-shooting party. The plaintiff received injuries from a pellet fired in a proper manner by the defendant when it glanced off a tree and struck the plaintiff. Decision: the defendant was not negligent. The plaintiffs injury was accidental and the action for damages for trespass to the person must fail.
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5 DEFENCES TO AN ACTION IN TORT cont..

5.4 Act of God


Act of God, which is an unforeseeable catastrophe (disaster/tragedy) , is a special type of unavoidable accident. This defence is rarely available.
Nichols v Marsland 1876

The facts: Due to an exceptionally violent storm, artificial pools on the defendants land which were well constructed and adequate for normal circumstances, were destroyed and the escaping water damaged bridges belonging to the plaintiff county council. Held: In the absence of negligence, the defendant was not liable as the accident was entirely due to an extraordinary act of nature.
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5 DEFENCES TO AN ACTION IN TORT cont..

5.5 Statutory Authority


If a statute requires that something be done, there is no liability in doing it unless it is done negligently. If a statute merely permits an action it must be done in the manner least likely to cause harm and there is liability in tort, for nuisance, if it is done in some other way. Vaughan v Taff Vale Railway Co 1860 The facts: A railway company was authorised by Parliament to operate a railway which ran through the plaintiffs land. Despite all the care taken by the company, a spark from one of their locomotives (engines) caused fire which destroyed eight acres of the plaintiffs wood. Held: In the absence of any negligence, the railway company was not liable as it had statutory authority.
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5 DEFENCES TO AN ACTION IN TORT cont..

5.6 Act of State


If a person causes damage or loss in the course of his duties for the State, he may claim Act of State. But it is not a defence in any case where the claimant is a British subject of the subject of a friendly foreign power

Buron v Denman 1848


The facts: D was captain of a British warship who had a general duty to suppress the slave trade. He set fire to a Spanish ship carrying slaves and released them. The Crown later ratified (consent) his act. Decision: neither D nor the Crown was liable.

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5 DEFENCES TO AN ACTION IN TORT cont..

5.7 Necessity
An act which causes damage may be intentional. If this is so, the defence of necessity may be raised, provided:
a. That the act was reasonable (such as shooting a dog to prevent it worrying sheep), and b. either the act was done to prevent a greater evil or it was done to defend the realm

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5 DEFENCES TO AN ACTION IN TORT cont..

5.8 Mistake
An intentional act done out of mistake may occasionally be defensible if it was reasonable. Such a case may be where a person makes a citizens arrest in the reasonable and sincere belief that the claimant committed a crime.
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5 DEFENCES TO AN ACTION IN TORT cont..

5.9 Self Defence


Where a person commits tort in defence of himself, his family, his property or in defence of persons generally then self-defence may provide a good defence provided the force used is in proportion to the harm or danger threatened.

For example, a blow is not proportionate to verbal provocation (Lane v Holloway 1967). Similarly, to shoot at trespassers or to set up traps or spring-guns to injure them is a disproportionate use of force to the likely harm threatened or done.

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5 DEFENCES TO AN ACTION IN TORT cont..

5.9 Self Defence (Contd...)


Dave v Wood 1822 The facts: In answer to a claim for assault, the defendant proved that the plaintiff had approached him menacingly (threaten to cause harm) on horseback, dismounted, (get off from the horse) held up a stick at him and provoked (to anger) him. Held: The defendants action was justified in the circumstances.

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5 DEFENCES TO AN ACTION IN TORT cont..

5.9 Self Defence (Contd...)


Cresswell v Sirl 1948 Similarly, if a neighbours dog attacks your cattle or sheep, you are justified in shooting the dog if it is the only reasonable way of preventing harm.

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Contributory Negligence
Contribution
Conduct of plaintiff contributed to the injury of plaintiff Plaintiff at least partially at fault May be complete or partial defense If the damage suffered as a result of negligence was partly caused by contributory negligence of the claimant his claim is proportionately reduced: Law Reform (Contributory Negligence) Act 1945 If plaintiff contributed in any part to his damages then no recovery for plaintiff

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Comparative / Contributory negligence


Degree of proof
burden of proof: defendant must prove, by a preponderance of the evidence, that plaintiffs own actions contributed to his own injuries failure to take reasonable precautions to avoid a risk which he could foresee. the test of contributory negligence is what caused the damage, not what caused the accident. OConnell v Jackson 1971, Froom v Butcher 1976, Fruge v. City of New Orleans, (1993)

Standard of reasonableness
there is a failure to do what a prudent person should do to avoid or reduce a foreseeable risk. Yachuk v Oliver Blais 1949
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Comparative / Contributory negligence


Example Students owe duties to themselves. If they breach those duties and the breach causes harm, they are negligent. If we are negligent and the student is also negligent, the damages are apportioned based on the degree of fault. The method of apportioning the damages depends on the jurisdiction and whether the principle followed is comparative or contributory negligence. Contributory Negligence (Summary) 1. Actions of the injured party contributed to their injuries (plaintiffs carelessness) 2. Injured party is the author (partially or wholly) of their own misfortune 3. Responsibility is apportioned
www.sagamorepub.com/powerpoint/Legal%20Concepts3rd.ppt/Chapter%206.ppt 63

REMEDIES IN TORT
1 Damages
Ordinary (compensatory) damages or general damages: Assessed by the court as compensation for losses which cannot be positively proved or ascertained, compensation for pain and suffering, future health issues, permanent incapacity and depend on the courts view of the nature of the claimants injury(estimated by court) . Special damages Damages which can be positively proved, such as damage to clothing or cars and covers specific losses or costs (actual amounts) Exemplary damages or aggravated damages Damages intended to punish the defendant for his act, and to deter him and others from a similar course of action in the future. These damages are only rarely awarded. They are sometimes awarded in newspaper libel cases. Nominal damages are given where the claimant has suffered injury but has suffered no real damage (as in trespass to land without damage to that land).
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Injunction
Injunction is an equitable remedy given by the court which requires an individual to refrain or do a certain act. There are two types of injunction. 1. An interlocutory injunction

2.

Awarded before the hearing to preserve status quo (existing state / condition).

A perpetual injunction

Granted after the full hearing and continues until revoked by the court.

Tortious or contract remedies?


A claimant will bring a case under either the law of contract or the law of tort (depending on circumstances). A claim a tortious remedy has more advantageous.. In some situations, the same event can easily give rise to more than one legal liability.
A road accident can lead to proceedings for crime, tort and even in contract, for example if the driver involved is a hired chauffeur. Bad professional advice may give rise to liability both in tort and in contract.
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