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By,

Ms. Sharvina Binti Shajahan


Faculty of Business

A tort is a civil wrong;


The law of tort - protects the rights & freedoms of
individuals, their property & reputation
Concerned with imposition of legal liabilities & the
consequent remedies in respect of civil wrongs
committed against recognizes entities;
The word tort - wrong - mean a wrong recognized
by law
Tort as a wrong the victim of which is entitled to redress
/ specific civil wrong or injury.
Law of torts has two function:
- to determine when a person has to pay
compensation for harm wrongly caused.
- to determine what conduct may be stopped or
regulated by the courts order.
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Crimes

Differences

Torts

A wrong against the state

A wrong against an individual

Case will usually be started by the state

Case will be started by the individual affected


(the claimant)

Defendant will be prosecuted in the criminal


courts

Defendant will be sued in the civil courts

The defendant faces criminal charges

A civil action will be brought against the


defendant

If guilty the defendant will be


prosecuted/punished

If liable the defendant will have to pay


damages/compensation to the claimant

Main purpose of the criminal law is to maintain


law & order and to protect the public

The main purpose of the law of torts is to


provide the individual who has a suffered from
an infringement of a right/duty, with a remedy
to enforce their rights

Branch of the public law (criminal law)

Branch of the private (civil) law;


Law of torts largely developed through
common law/case law

Standard of proof- beyond reasonable doubt

Standard of proof- balance of probabilities

Burden of proof- rests with the prosecution

Burden of proof-rests on the claimant

Kinds of interest that law of torts protect against:


a. person - assault, battery, personal injury
b. property - trespass, nuisance, interference with goods
c. financial - economic loss
d. reputation - defamation
A tort arises not simply out of the infliction of injury to the
interest stated above but in the infliction of a legally
recognized injury
Liability in tort may arise:
1. Primary - where a person is liable for his own act or
omission in breach of a legal duty
2. Vicarious- Where a person is liable for the act or
omission of another with whom he stand in some
special relationship.

There are different types of torts recognised by the


English law and each tort sets out a certain expected
standard of behaviour.
We will be looking at the following torts:
The Tort of Negligence
The Tort of Defamation
The Tort of Trespass (both against the person and
property)
The Tort of Nuisance
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The Tort of Negligence


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What is Negligence?
Dictionary Definition: lack of proper care and attention;
Legal Definition: the breach of a legal duty of care,
which results in damage to the claimant undesired by the
defendant

Breach of a legal duty to take care - as a result of which


-the plaintiff suffers damage.
To succeed in an action for negligence - plaintiff must
prove ALL the elements of negligence:

1. The Duty To Take Care


A defendant will only be liable if he owes the plaintiff a
duty to take care
If there is no duty to take care, a negligent act has no
legal consequence
A duty of care exist in normal circumstances where if a
person does not take the usual precautions, another
person or his property may be injured/damaged
To test the existence of duty of care - Donoghue v.
Stevenson (1932).

2. Breach Of The Duty


Plaintiff must show not only that there is a duty to take
care - but that the duty have been breached - i.e. the
defendant does something below the minimum standard
of care required;
Standard of care to determine breach or not - that of a
reasonable man - i.e. would a reasonable man have
acted as the defendant has done if the reasonable man
was faced with the same circumstances?
who is a reasonable man?
Reasonable man someone who is neither careless nor
overly careful.
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3. Causation and Damage


There must be some form of damage or injury as a result
of the breach - whether physical or to property
The question that arise: whether the defendants
conduct has in fact caused the plaintiff's damage?
This is known as the But For test
If the damage would not have
happened but for a particular fault,
then that fault is the cause of the
damage. If it would have happened
just the same, fault or no fault,
then the fault is not the cause of
the damage

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The defendant would not be liable if damage or injury would have


occurred in any event without the defendants fault
Barnett v. Chelsea & Kensington Hospital

Plaintiff does not have to establish that the defendants breach of duty
was the main cause of the injury, as long as it materially contributed to
the harm - McGhee v. National Coal Board

The damage or the injury was of the type which the law allows
recovery that is - not too remote - must be foreseeable although the
extent and method of the damage is irrelevant
Vacwell Engineering case bigger explosion than anticipated

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Defendant too must accept the plaintiff as he is the eggskull rule


Smith v. Leech-Brain & Co injury causing lip
cancer

Intervening Acts
Novus actus interveniens - Where there is a new intervening act
this may break the chain of causation removing liability from
the defendant. The legal test applicable will depend upon whether
the new act was that of a third party or an act of the claimant.
Where the new act is of a third party, the test is whether the act
was foreseeable. If the act of the third party was foreseeable, the
defendant remains liable and the chain of causation remains in
tact. If the act of a third party is not foreseeable this will break the
chain of causation and the defendant is not liable for the actions of
the third party:
Rouse v. Squires compared with Knightley v. Johns
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1. Contributory Negligence
Where the plaintiff failed to take reasonable care of
himself which contributes to his injury along with the
defendants negligence.
Contributory negligence is a partial defense it is the
defendant who must plead contributory negligence
Section 12 (1) of the Civil Law Act 1956
Where any person suffers damage as the result partly of
his own fault and partly of the fault of any other person
or persons, a claim in respect of that damage shall not
be defeated by reason of the fault of the person
suffering the damage, but the damages recoverable in
respect thereof shall be reduced to such extent as the
Court thinks just and equitable having regard to the
claimants share in the responsibility for the damage

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2. Res Ipsa Loquitor


Where the thing speaks for itself
When the plaintiff raises the maxim, he is asserting that
based on the evidence given, he has proven, prima facie,
that the defendant is negligent
The main purpose is to prevent injustice as otherwise the
plaintiff would be required to prove details of the cause of the
incident, which he may not know
The maxim is not applicable when all the facts relevant to
the cause of the accident are known
Nevertheless - the accident wouldnt have happened if not
for some negligence on the defendants part.

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Three requirements:
The thing that cause the damage must be
under the defendants control
The damage is something that will not
happen if the defendant takes adequate
precaution
The cause of the accident is not known

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3. Psychiatric Illness / Nervous Shock


A positive psychiatric illness or physical damage as a
result of physiological trauma experienced by the plaintiff
due to the defendant's negligent act
For the purpose of recovery of damages not necessary
that the plaintiff shows direct impact or fear of immediate
personal injury
Claimant may recover damages arising from nervous
shock resulting from injury to near relatives or fear for
such injury
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The case of Alcock & Ors v. Chief Constable of South Yorkshire


Police laid down the requirements that need to be proven to
succeed in a claim for nervous shock:
It must be foreseeable that damage in the form of psychiatric
illness would occur
Foresee ability depends on the nature of relationship between
the plaintiff and victim love and affection
The proximity between the plaintiff and the accident in time
and space i.e. the plaintiff must either see, hear or be
physically present at the scene of the accident immediately
after the immediate aftermath test
The means by which the shock has been caused - the
psychiatric harm must come through the claimant's own sight
or hearing of the event or its immediate aftermath
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Zainab Ismail v. Marimuthu


Court allowed the plaintiff's claim as a result of seeing her daughter
knocked down by the defendants lorry
McLoughlin v. OBrian
The plaintiff's husband and her three children were involved in a
road accident caused by the defendant's negligence. The plaintiff
was informed about the accident two hours after the event, and she
was taken to the hospital where she was told about the death of one
of her children and saw the injuries to her family in distressing
circumstances. The House of Lords was unanimous in holding that
the plaintiff's claim for psychiatric illness should succeed
Bourhill v. Young
A pregnant lady after alighting from a tramcar hear noise of collision
and after the accident she went to the spot, saw blood spot and got
shock. Court denied her claim because it was not reasonably
foreseeable that someone not closely connected to the victim would
suffer nervous shock.
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Vicarious Liability is an exception to the principle that a


person should not be held liable in absence of fault of his
own.
Vicarious liability refers to situation where, for example Ali is
liable to Chong for damage or injury suffered by Chong due
to the negligence or other tort committed by Bobby.
Ali need not have done anything wrong and need not owe a
duty of care to Chong.
Most important condition for imposing a liability on Ali is the
nature of relationship between Ali and Bobby
Under vicarious liability - employer liable for the negligent
act of his servant/ employee.
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The reasons why an employer has to be liable for the


negligence of the employee :
Employer employ the negligent worker
Employer failed to control the employee
Employer benefit from the employees work - set the
whole thing in motion
Employer has deeper pocket

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However, before you sue the employer


for the wrongdoings of his employee,
make sure these requirements are
fulfilled

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1.

Wrongful act
The court will see whether a tort has been committed

2.

The existence of a special relationship


The employer will only be liable if the tort is
committed by his employee / agent
If the tort is committed by independent contractor,
then the employer will not be liable
Several tests to determine existence of contract of
service:
Control test
Integration Test
Multiple Test

3.

The tort is committed by the employee during the


course of employment
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1. Volenti Non Fit Injuria


Prevents the defendants wrongful conduct from being a breach
There must be consent or assumption of risk by the plaintiff
The consent or assumption of risk must be voluntary whether
express or implied
There must be full knowledge of the nature and extent of risk of
injury
Must be to the act complained of
2. Inevitable Accident
Something which is not avoidable by any such precautions as a
reasonable man could be expected to take
Defendant must prove that what happened is beyond his control
and could not be avoided by the exercise of skill and care e.g.
latent defect in a vehicle

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1. Define Negligence
2. Define Tort
3. State the two (2) functions of law of tort
4. In a table form, state the differences
between crimes & torts
5. Briefly discuss the three (3) elements of
Negligence
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