The development of tort law
The purpose of tort law is to compensate victims for harm caused by the activities of others.
Originally, anyone who caused injury on another had to compensate for that injury and it was never taken into consideration why that injured someone or under what circumstances. This type of liability is called strict Liability
Overtime people realized that compensation should only be given if the injurer was in the wrong
Today tort law involves only two principles, the fault of the defendant and the causation of the harm.
What is fault?
refers to blameworthy conduct, conduct that in the eyes of the law is unjustifiable because it intentionally or carelessly disregards to the interests of others.
How does public policy play into torts?
whether a tort should rely on fault, strict liability or other principles is a matter concerning public policy.
Often if there is strict liability attached to an action, it is clearly stated in a statute.
The government can also adopt government run compensation schemes such as making making no-fault insurance compulsory for automobiles
What is vicarious liability?
An employer is held responsible for a tort committed by an employee. This is called Vicarious Liability
There are two public policy reasons for taking this approach…
- employees often have limited assets available to pay compensation for the potential harm they can cause
- it seems only fair tha the person who makes the profit from an activity should also be liable for any loss
What are intentional Torts
Intentional Torts – are those where the activity or conduct is done deliberately not by accident. Harm or damage must occur for any tort to be actionable
Assault and Battery
One of the oldest torts was ‘trespass to the person’ which is known today as assault (the threat of violence) and battery (the actual physical contract)
Not so common against attackers but more so against doctors and within contact sports
The only defence is to establish that there was consent given or implied
Nuisance
There are two nuisance torts
Public Nuisance – protects the public interest and access to public places (things like blocking roads etc)
Private Nuisance - protects an occupiers rights to the reaosnable use and enjoyment of its land without substantial interference from direct or indirect activity on neighbouring property
I.E. excessive noise, contiaminating liquied ported into rivers ect.
False Imprisonment
False imprisonment – is the tort that is most applicable to shoplifting in the retail business. It covers intentional restraining a person, without lawful justification, either by causing his confinement or by preventing him from leaving his location.
False Arrest – similar to false imprisonment except with the added element of holding the victim with the intention of turning him over to the police for prosection.
o However, you are not liable if you suspect someone, call the police and it turns out they haven’t committed a crime
Malicous Prosecution
- False claims can attract liability for malicious prosection if there is not honest belief that a crime was comitted.
o The elements are…
1. unsuccessful charges against the plaintiff
2. Initiated by the defendant
3. Without reasonable or probable ground
4. With malice or other improper purpose
Defamation
The two defimation tors are libel (written defamation) and slander (spoken defamation). In both torts it involves making a false or insulting statement that causes injury to the private, professional or business reputation of another person.
Defence against defamation
o If it is true,
o If it is under absolute privilege
(Spoken in parliament, royal commissions and law courts and inquests. )
o If Qualified privileged applies
(if you are asked to write a reference letter for someone.)
Other Intentional Torts Related to business
- The tort of unlawful interference with economic relations also involves three parties. Business A commits an unlawful act against B in order to hurt C’s business.
- A person commits the tort of product defamation when he intentionally makes false and disparaging statements about the products of another person.
inducing breach of contract
o I.E. Usually if A convinces B to break his contract with C, C will sue B for the breach of contract.
Unintentional Torts
- these are torts where harm is caused by accidental behaviour
Negligence
- The concept of negligence is quite simple: anyone who carelessly causes injury to another should compensate the victim for that injury
Elements of negligence
o 1. The defendant owed the plaintiff a duty of care
o 2. The defendant breached the required standard of care
o 3. The plaintiff suffered injury or damage
o 4. The defendant’s conduct caused the plaintiff’s damage.
How do you determine a duty of care
Through proximity (closeness) and the foreseeability of the event causing injuring happening
How do you determine causation
Using the ‘but for’ test
How do you determine the standard of care?
This is based on a reasonable person in life circumstances
What are some defences to negligence?
The defence can argue that there was contributory negligence
There is also the defence of a voluntary assumption of risk taken by the plaintiff. It can be used when the plaintiff was aware fo the risk of harm prior to undertaking the activity and consented to it. HOWEVER, the challenge is that the EXACT risk must be desrcibed.
Product Liability
the liability of manufacturers for injury or loss caused by defects in their products: product liability. The elements are the same as negligence and this is used to close the gap or proximity between vendor and consumer
Inherently dangerous products
For inheriently dangerous prododucts there is a duty to warn
Occupiers liability
- the liability of occupants for injury or loss suffered by visitors to their premises.
o Occupiers physically or legally controll the premises, there can be more than one occupier - The duty is owed to three separate groups
o Invitees
The highest duty was owed to an invitee —that is, a person permitted by the occupier to enter for business purposes (for example, a shopper)
o Licensees
The duty owed to a licensee —any other visitor entering with the express or implied permission of the occupier—was simply to remove concealed dangers of which the occupier had actual knowledge.
o Trespasser
A duty is still owed to a trespasser, but the standard of care that must be met is lower than that for expected visitors. It is minimal—the occupier must not set out deliberately to harm the trespasser or recklessly disregard the possibility that his acts might injure a trespasser
Remedies
the usual remedy for a tort (intentional or unintentional) is an award of a sum of money, known as damages , to compensate for physical and economic losses.
The object of awarding damages is not to punish the wrongdoer, though punitive damages may be awarded in extreme cases to show the court’s disapproval of intentional conduct, such as assault, libel or malicious prosecution
There are two types of damages…
o Special damages refer to monetary or pecuniary items that have fixed costs and can be more or less accurately
calculated—medical bills, the cost of repairing a car, or actual lost wages.
o General damages include less precise, more speculative items,
- Courts may also grant an injunction — that is, order the defendant to refrain from committing further acts of a similar nature under threat of imprisonment for contempt of court.
Liability of Professionals
- Liability arises from three relationships, generating multiple causes of action
o The contractual relationships generates a breach of contract cause of action
o The fiduciary relationship generates a breach of ficduciary duty
o The tort of negligent misrepresentation is available when a tort duty of care is owed.
