3. TORT.pdf

THE LAW OF TORT – SESSION 1 CONTENT  Introduction Nature of law of torts Types of torts General defenses Doctrines of joint tortfeasors and vicarious liability Limitation and survival of actions Remedies in tort Framework governing the award of damages Introduction A civil wrong for which...

THE LAW OF TORT – SESSION 1 CONTENT  Introduction Nature of law of torts Types of torts General defenses Doctrines of joint tortfeasors and vicarious liability Limitation and survival of actions Remedies in tort Framework governing the award of damages Introduction A civil wrong for which the remedy is a common law action for unliquidated damages’. The word damages is not the plural of the word damage but rather the monetary compensation awarded to a person (aggrieved party) whose private rights have been violated. Tortious liability arises from the breach of a duty primarily fixed by law i.e. common law or statute. This duty is towards persons generally. A person who commits a tort is known as a tortfeasor. TORT Rights Duties TORT RIGHTS DUTIES Driving a car Drive carefully Owning property Construction Writing books Constructing a dam Essentials of a tort Unlawful act by the defendant Legal damage to the plaintiff Unlawful damage must attract legal remedy Purpose of the law of Tort The general purpose of the law of torts is to protect people’s rights by allowing them to sue if their interests are invaded, threatened or harmed. NATURE OF TORT The nature of tort can be explained either by distinguishing it from other wrongs or by mentioning some of the elements which are found in tort and not in other wrongs. Nature of tort cont’d TORT CONTRACT duties are fixed by law by the parties the duty is towards persons generally Specific persons Doctrine of privity of contract does not Only parties to the contract can sue apply each other hence the doctrine of privity of contract In tort, the remedy is unliquidated damages both liquidated and unliquidated damages. In tort, the emphasis is more on torts of commission Omission Tort and Crime TORT CRIME Ends of justice is compensation Punishment Balance of probabilities Standard of proof is beyond reasonable doubt Plaintiff to prove case The burden of proving a criminal case infringement of civil rights belonging lies with the prosecution to an individual Community rights Parties are plaintiff and defendant Prosecution and the accused person Out of court negotiations - No compromises unless allowed by AG compromise Classification of torts Intentional torts which refer to deliberate acts that result in damage to other people e.g. trespass, deceit, fraudulent misrepresentation. Torts requiring negligence or fault arises where the defendant’s conduct is at least unreasonable e.g. the tort of negligence, private nuisance. Torts of strict liability which committed neither intentionally nor negligently. This may also arise under duties in contract or those imposed by statute. Relevance of malice and motive The law of torts does not usually concern itself with why the defendant behaved in the way they did, in other words, the motive for their actions. Malice and Motive A person carries out an A person who acts with act with malicious intent, the very best of they will not be liable if intentions in particular what they have done is circumstances will still be not unlawful. See case of held liable if the action is Bradford Corporation vs. unlawful e.g. entering Pickes another land - fire 3 circumstances where they are relevant Malicious prosecution Malicious falsehood In the tort of nuisance, some actions which are reasonable may become unreasonable if they are actuated by malice Relevance in insurance practice Insurance policies e.g. motor and fire, damage to property that is maliciously caused by persons other than the insured is covered. This in essence means that one may maliciously commit the crime of arson against the insured property and insurers will still provide compensation as long as it is not through the insured’s willful misconduct. DAMNUM SINE INJURIA Damnum sine injuria is a latin phrase which means causation of damage without violation of a legal right. It arises where there is actual and substantial damage or loss suffered by a person without violation of their legal rights. Purpose of maxim Determines whether one has a valid claim Where the maxim can apply Ordinary trade competition Lawful use of land Case of Bradford Corporation Injuria sine damnum Infringement of one’s legal rights without actual damage being suffered. In most cases an action in tort will succeed only where the claimant has suffered some form of injury, damage or loss. However, in some cases a tort may be actionable per se (actionable in itself). Defamation cases, trespass to land TYPES OF TORTS TORT OF NEGLIGENCE It has been defined as the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do’. Omit to do what a reasonable man can do or do what a reasonable man cannot do Doing what a reasonable person cannot do A driver overtaking on the face of an oncoming vehicle Speeding in a crowded estate A doctor leaving tools of trade in one’s body following surgery County government leaving a manhole open in the middle of the road An employer not servicing plant and machinery Negligence Negligence is essentially negative in character. It is either a commission of a careless act or perhaps more accurately, it is the omission of an appropriate degree of care for the rights of others. Negligence is, essentially, a failure to take care in circumstances Essentials for negligence 1. A duty of care is owed Refer to case of Donoghue vs. Stevenson Essentials of Negligence 2. Breach of duty of care -Doing what a reasonable person cannot do -Standard used to determine Essentials of negligence Damage Foreseeability Causation The burden of prove and the doctrine of res ipsa loquitur The burden of proof lies with the person alleging negligence and normally it is the plaintiff. It is based on the principle that ‘he who asserts must prove’. The onus of proof is on the plaintiff throughout the proceedings to show on a balance of probabilities that the defendant was negligent. The plaintiff must establish sufficient evidence to show that their injury or damage has been caused by the defendant’s negligence. Res ipsa loquitur This is when plaintiff’s burden of proof is relieved by the doctrine of res ipsa loquitur i.e. the thing speaks for itself (the facts speaks for themselves). Conditions which must be present for the doctrine to be successfully invoked include: The accident must be such that in the ordinary course of things, the event would not have occurred without negligence- e.g. that the road was clear and the visibility was good The object that caused the injury or damage was under the direct control of the defendant, their servant or agents That the accident would not have happened had the defendant exercised duty of care Negligent misstatement/advice This is where one is held liable for negligent advice that results in financial loss. This position is established in the case Hedley Byrne vs. Heller & Partners ltd where it was ruled that there can be liability for negligent misstatement which causes financial or physical loss. Case law Hedley Byrne rule has expanded in recent years and it is clear that the rule now applies not just to negligent 'advice' or 'statements' but to negligent professional work generally, including the drawing up of plans, the carrying out of surveys and similar activities. This has led to a number of professionals taking out professional indemnity insurance policy to guard against claims based on professional negligence Essentials for negligent professional work There exists a special relationship where it is reasonable for the claimant to rely on advice given The giver of advice could reasonably foresee that the advice is likely to be acted upon Advice is acted upon causing loss to the claimant NEGLIGENCE LIABILITY IN NEGLIGENCE - EXAMPLES Occupiers Liability An occupier is a person who has sufficient degree of control over premises to put him under a duty of care towards those who lawfully come upon the premises Occupiers are therefore held liable in negligence for defective premises. Even where the building itself is safe, the visitor may come into contact with unexpected hazards, such as dangerous machinery, vicious animals or toxic materials. Under the common law, there were special rules governing the liability of occupiers of land or buildings towards visitors who suffered injury because of defects in the premises or dangers which were present there. Cont’d The occupier’s liability in Kenya is governed by the Occupier’s Liability Act Cap. 24. The Act provides that the occupier owes a duty of care to visitors i.e. those who have been expressly or impliedly allowed to enter the premises. The duty is to ensure that the visitors are reasonably safe in using the premises for the purpose for which they were invited. The Act provides that the occupier may restrict or exclude liability by giving adequate warning. The occupier is generally not liable for incidents arising out of defective work of an independent contractor. Liability for defective products Product liability is also an important area of law because defective products are another common source of injury and damage. Examples of these products include defective electrical equipment which is a frequent cause of fire or bodily injury, those made for direct human consumption, such as foodstuffs or pharmaceuticals can result in serious illness if they are unsafe. A person who suffers as a consequence of the defect may sue under the tort of negligence but can also base their case on breach of contract. Article 46 (1) (d) of the constitution provides that consumers are entitled to compensation for loss or injury arising from defects in goods or services. Manufacturers may protect themselves against claims by consumers by purchasing product liability insurance cover. Employers Liability This part of the law of torts is concerned with the liability of the employer for injuries suffered by employees in the course of their employment. The liability may arise under common law (tort of negligence) or under statute. The rule is that an employer is vicariously liable for the torts committed by an employee in the course of their employment. This means that where a worker injures a fellow employee in the course of their job, or injures somebody who is not a fellow employee (such as a visitor to the premises), the victim can claim compensation from the employer, who is vicariously liable. The law that regulates injury to employees sustained in the course of duty is the Work Injury Benefits Act (WIBA). An overview of the Act will be given in chapter 8.