Tort Law Notes PDF

#separator:tab #html:false A ___ is a civil wrong a tort is different to a criminal wrong in that it deals with ________tional harm and injury Tort Law wrong warrants award of ___________ to injured partyrestore plaintiff to _______ positionstandard of _____ is on balance of probabilities crimin...

#separator:tab #html:false A ___ is a civil wrong a tort is different to a criminal wrong in that it deals with ________tional harm and injury Tort Law wrong warrants award of ___________ to injured partyrestore plaintiff to _______ positionstandard of _____ is on balance of probabilities criminal law: wrong is serious and attracts _________ by statestandard of rpoof is beyond a ___________ doubt law of torts is primary ocncerned with ___ between individuals Tort V Contract TortObligations imposed by law- no ag____ required to take actionContractual LiabilityArises from o______ agreed between partiesOverlap-plaintiff may plead br____ of both negligence and contractual breachtort law provides remedy for those without a ______ relationsip Torts: wrongs dealt with by law of torts include: causing physical/ psychlogical in_____ to another intentionally or negligently tres_____to person and negligence interfering with anothers l__d or goodstresspass to goods and nuisance making f_________statement about anotherlibel or slander = d_______ Sources of Tort Law: S_____te LawC_____ Law (Case) Elements of a tort Infringement of ____ Proof of d________Fore________Remoteness of d_____ Exception to infringement of right is s____ liability exception to proof of damage is a_______ per se Tort- the plaintiff must prove: the defendant has in_____ a right of theirs recognised by lawsome d______/loss was cuased to them by the tortious act Strict Liability holds a party accountable for actions or products withut needing to prove ______ Strct Liability examples includewild animals, handling of c______, product d_____ Ryan v Fletcher This case set a precedent for imposing _____ liability for inherently dangerous activities. Liability for defective products donoughue v stevenson- ne_____ ruleobligation of manufatcurers to take precautions against injusries from ordinary and non-n_______ use of goods Obyrne v Gloucester this case resulted in the ____ products act 1991 Instances for establishment of right terminologies N_____when you employ someone to do something for you such as a solicitor or adviserT_____ to other persontreated by someone who owes you a duty of careTre_________you are the land ownerNu_______usually you are the land ownerDe________your reputation is at stake Damages most torts are based on f_____careless acts/omisions leading to injury require a p_____ of faultactionable p__ s_ is when a plaintiff does not need to prove a loss or damage before a cause of action. instead, plaintiff must only hsow their legal right has been in_______e.g. Libel (def______) and tressass Foreseeability/ remoteness of damage if a reasonable eprson standing in the shoes of the defendant would not have fo_____en the actions or omissions wwould be harmful, the defendant may escape lia____if the injury was not foreseeable, defendant may not be liable Wasgon mount v morts dock and engineering this case established the principle of fore_____ Proof Burden of proof: party must prove an issue in the disputeplaintiff carries burden to prove a cause of a_______ defendant carrised burden to prove elements of de_____ or disprove elements of action "Standard of proof balance of p_________plaintiff version of events more likely true than notanything more probable than not is treated as c___court will apply ""c____ sense and a carefulunderstanding of the logic and likelohood of eventts""" Defences in tort First:party suffering damage must p_____ that some right recognisedby law has been inf____ for an action to ariseSecondwhere an action is taken the defendant has a number of defences to negate or reduce l______ General defences tp a legal action absed in tort law: In______ble accidentConsent of the plaintiff- vol_______ assumption of riskNec____Sta_____y AuthorityL_______ns of actionsI_____al Act "inevitable accident: Accident which could not have been for______ or pre______ by the due care and dilligence of any human involved i itcould not be avoided by taking ordinary and reasonable precautionsan act of ""___""NOT ACTIONABLE CasesObrien V P_____St___ V Powell" Voluntary assumption of risk aka w_____ of legal rights defendant must prove plaintiff appreciated physical risk and con_____ to run the risk to the extent of waiving their legal rightsmust be no pr______ on the individual to take the risk Regan v Irish Automobile Club 1990 plaintiff struck by car while officiating flagshe had signed liability for accident contractregan took a vo_____ assumption of risk Necessity in tort deliberate tortious actperformed to prevent some greater e___no reasonable al____examples:pulling someone from water to avoid drowing (tres____ to p_____) Tresspass on land to put out fire is an example of : Cope v Sharpe 1912 fire broke out on plaintiffs land; defendant was gamekeeper on adjacent land, created a fire break by burning some of P landsued for tresspassruling: sharpe acted out of N______ Statutory Authority Statute provides for a de______ Police can arrest under warrant withut fear of T_____Provided the defendant can prove that any damage caused by action did not arise as a result of their negligence Smith v Wexford landmark in Sta______ Authoritycoucnil worker cleaned river beds and thew soil and vegetation onto plaintiffs land, some of which were poisonous and killed the plaintiffs cowsruling: court held defendants could rely on defence of statutyory authority as they coudl not have reasonable f_______ posionous nature of roots Anderson v Cooke Illegal Actplaintiff was speeding and ijurted- injusries were caused by an _____ actEx t__ defence applied here Limitation of Actions st______ of limitations: time person has to make a claim following incident, beyodn that time frame, no tort action can be takensince the civil liability act 200_ negligence claims cannot be brought _ years from the date which action accrued or knowledge of injuries Remedies for tortious behaviour D_____gesI______tion Damages as a remedy for tort Co_________ry DamageAg________ted DamagesE________ry DamagesNo_____al Damages Compensatory damages: consist of _______ Damagesfinancial losses (earnings, medical bills)_______ Damagesnon financial losses such as pain and suffering and emotional distress ________ damages: often not awarded, they apply where the injury has been aggravted by wrongdoers behaviour (e.g. curelty E_____ Damages (EXCELLENT!!!) Additional sum awarded where court wishes to punish defendant and deter future behaviour N______ Damages: Rights infringed but plaintiff has not show real damages, court will award a minor sum Injunction equitable remedycomands someone to do or not do something (_______ injunction)ORNot do something (________ injunction) Inter______ry injunctions: preserve status quo until action can come for trial Campus Oil Test for interlocutory injunctions: S_____ question to be trieddamages would not be a______ remedybalance of c_______ favours granting the injunctions Negligence is the failure to take _____ care to avoid causing injury or loss to another person Negligence is determiend by f____-based liability the key principle of Negligence is r___________ 3 main ingridients of negligence D____ of careB____ of dutyC______ (damage/loss/injury) Establishing a duty of care: must establish some legal r______ on the part of the defendant in the form of an o_____gation or a duty Breach of duty: once duty established, defendant will be subject to s______ of careif defendants conduct falls short of standard of care, he has b_______ that dutyr______ble man test Damage and causation damage or loss must follow from the breach for the plaintiff to bring an action in n_______ against the defendantca_____ connection between conduct and injury is CRUCIAL duty of care: owed to those who are in area of f_________le dangerpotential litigants= those who are owed a duty of careduty of care examples:doctor to p______pedestrian to m______solicitor to c______ Donoghue v stevenson snail found in ginger beer after customer bought it for friendsince friend was not a party in the transatcion, could not sue under c_____ lawhowever, the friend of the customer was owed a d___ of carethe barman could have reasonably fore______ his liability to injure a neighbour Kings v Phillips (1952)- exception to d__ of care boys bike got ran over- kid was fine but screamedhis mother looked out and saw no boy, a fucked bike and screams of her son and she suffered shcok and illnessshe sued for n_________however, the motorist only owed a duty of care to the boy as he was the only p_____trian, he could not reasonably f_______ that his actions would affect peole in houseshe did NOT owe her a duty of care Hedley Byrne v Heller plaintiffs requested credit references on E LtdDefendants (negligently) gave good reference with claims that there was no perosnal liability with this statementheld: defendantes o______ a duty of carehowever, due to dis________ were not liable Breach of duty/ falling below standard of care once established that plaintiff owed a duty of care, must be proven on a balance of p________ that the duty has been breachedb_____ occurs where D failed to take approprirate caredid the defendant exercise the care that a r_______ person REASONABLE PERSON: if the defendant is acting i na proffesionbal capacity, the standard will eb what is r______ expected from a memebr of that proffesion Proving breach of duty of care: factors consideredp______ of accident occuringg_____ of potential harmsocial u_______ of defendants confuctcost of p_______ accident Assesing Standard of care: O'Gorman v Ritz Cinamaestablished that the mroe p______ble an accident, the higehr the standard of c arewhooly v dublin corporatioonplaintiff injured by open fire hydrant box sued defendant, no liability due to p________ of the boxMuldoon v Irelandcost of eliminating risk ;not expected to do e______ to prevent injury SEE v Public Lightig Services Held that when products comply with relevant s________, the reaosnable care was taken Proving injury or loss must show some damage, loss or injury has been s___redharm or loss must becaused by c____ctclosely related to the n____t act physical injury to plaintiffs property or economic loss by pshycial/psychological injury Res Ipsa Loquitur the principle that the mere occurrence of some types of accident is sufficient to imply ne______ce availing of res ipsa loquitur plaintiff must prove:damage occured in une_______ waywould not have occured in o______ course of events without some form of negligencecircumstances point to l_____ of the defendant as opposed to any other personthat the incident or factor that caused the damage was within control of the d______ lindsay v midpwestern health board: example of R__ Ip___ Loq____ Causation- contributory negligence under civil liability act 1961- defendant may raise defence of c_____ negligenceplaintff suffers p_____ as a result of own faultroad traffic incidients, liability may be __/__ Causation- concurrent wrongdoers V_____ Liability: When a person is legally responsile for actions of another (employer-employee)Breach of J_____ duty: where =>2 people are udner a joint dty of care, it is not necessary to show which of these persons breached the dutyC_______cy: or concerted action toward a common end goal N____ A_______ I_______niens intervening act breaks chain of causation between injury and action by replacing defenants act as sole cause of plaintiffs harm C_____v R____b____Oyster Co. captaisn negligent action (he knew boat was fucking shit) was intervening between builders and consequence, resulting i all negligence and blame on the capain as the sole cause Egg Shell Skull Rule take them as you ___ themeven if they were already retarded and prone, your damage to them happened regardless of their p_____ conditions, even if they were a waterheaded r______. P_____ Liability: Where defective products caused injury to persons or property though no fault of the user Contract Law (product liability): contract of sale, purchaser can sue for ______of contract Tort of Negligence (Product Liability): If you cannot purse a claim in contractm you purse tort of n______ Liability for defective products act 1991 S____ liability and therefore plaintiff does not need to prove _____ Strict Liability in Products holds a party repsonsible for their actions or products without plaintiff having to prove Statute Liability for Defective Products act 1991or fault for strict liability must prove: I______C_____ link with product defect and injury "Who is liable: p________er is liable for damages in tort for injuries caused ""wholly or partly by a defect in the p______ct""producer is widely defined as section 2 as: M_________erI______er bringing porducts into the EUs_____ in certain circumstances where producer cnanot be identified and supplier fails to identify producer" Onus of proof: plaintiff must prove on the balance of p______that the defect caused injrury or damage to the plaintiffcausation: once c_____ link is established liability is srtrict "what are ""products""? product: all m____ables, does not cover immovables such as land and houses. includes movables incorporated by raw material or component partsproduc is d_______ve if it fails to rpovide safety one is entitled to expect" Defective if fails to provide s_____y which reasonable person is entitled to expect, inclduing: The p_______ion of the productThe use to which it could be re_____ly expected that it would be put underThe t____ when product was put into circiulation disclaimer: a product cannot be considered defective for the reason that a b_____ product entered circulation. "Product Liability: Case example Cassels v Marks and Spencers plcProduct label said ""keep away from fire""defendant was held not l_____" Defences of onus of proof producer did not put the prodcut into c__________Defect did not e____ at time product was put into circulationproduct was neither manufactured by him for sale or any form of d________ for ecpnpmic purposesThe defect concerned is due to c________ by the product with any requirement imposed by or udner any enactment of the EUthe state of s_______ and technical knowledge at the time was not enough to detect defectin cases of manugacturers of composnents or raw materials, if th defect is attributable entirely to the d_____ of the final product or instructiosn given by product manufacturer Product Liability limitation periodall claims must be brought within yearsbegins from date the action accrued or date on which plaintiff became a___e or ought reasonably to have been aware of the damage the defect caused Contributory negligence under civil act 1961 defendant may claim defence of c_______ negligence which provides that whhere a plaintiff sufferes inury or a loss partly as result of their own fault, partly due to fault of another, the damages recoverable will be reduced accoridng to s_____ of responsibility Occupiers liability: Cause of action Situaions were plaintiffs recover damages agaisnt o______for unjusries sustained on premises of Ppremises can be land water or any fixed or movable structure Occupiers Liability occupiers are those who have control over state of the p________, reasonable to impose a duty on them in respect of the dangerowe a duty of c____ towards those who enter premisesduty owed depends on s_______ of entrantthree categories of entrantsI_____contractually entitled to visit (ticket holder)L________confer advantage on occupier (customer in a shop)T__________not invited under act, duty of care is owed to : V_______enter premises at invitation or w permissionR______ Userentrant present with or wirhot occupiers permission or by implied invitation for the pupose of engaging in recreational activityT________anyone besides the top 2 Duty owed to a visitor visitors owed a duty of ______occupiers take r________ care to ensure visitor and their property do not suffer injury or damage by reason of any danger existing on premises of the o________ visitor standard of care: a visitor is expected to meet a level of care for their own s___ and for those who are in their company or controlcontributory negligence can be raised as a d______ Duffy v Carbane holdings 1996 nightclub slipped on floor from spills and glassnightclub warned ppp about taking glasses on floordetermiend that club was negligent cos they left broken glass and liquid on floor for too longthey did not fulfill d___ of care Weir rodgers v sf trust LTD plaintiff was sitting enar edge of cliff admiring sunset at local beauty spor when she rolled off it and sustained injuriesshe issued proceedings against defendant (L________r) under occupiers liability act 1995 claiming there should have been adequate fencing and w_____ signsresult, high court ruled contributory negligence, with defendant receiving 25% discount on payment Reckless Disregard Nature of d______Wether occupier knew danger e________Burden of e______ dangerC______ of entrantSelf r________ to take care of own safetyW_____ or supervision of entrannt SECTION 4 In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (“the person”) a duty(a) not to i_____re the person or damage the property of the person in______ , and(b) not to act with re_____ss disregard for the person or the property of the person,except in so far as the occupier extends the duty in accordance with section 5. Section 4(2) states that in determining reckless disregard, all the circumstances of the case and a number of factors will be considered including: N______ of the danger;Whether occupier k______ danger existed;Burden of e________ danger;C_______ of the entrant;Self r________ to take care of own safetyW______ or supervision of entrant; Occupiers Liability to restrict liabilit: owners can put up notices/w______ such as skgns to restrict, modify or completley ex_____ themselves from liabilityoccupiers are not liable for injury or damage unintetionally caused to persons entering their premises for the purposes of commiting an of____/crime, or if they commti an offence while on the p_______ Duty owed to Trespassers the duty owed to trespassers is the same as that owed to _________ usersCaseW______ms v TP Wallace Construction Ltdcreated the distinction between t______ and vistorsWilliams was held as a t______ and therefore the ladder left alone by workers on break was not r____ disregard Vicarious Liability a person may also be answerable for the acts of o____ Vicarious Liability One party is liable for the acts of another Where a party either expressly or impliedly au______ another to commit an act which injures or d______ another, that party may in law be held responsible under vic______ liabilityThe _____ of control by the defendant over the wrongdoer is the most common justification for imposing liability Vicarious Distinct form of liability based on the r______ip between the wrongdoer A and BThe law holds B liable for injury or loss caused by ACommonly arises in the em___r/employee relationship For vicarious liability, the emploeyr is only liable for torts occuring DURING e_____ DURING COUSE OF EMPLOYMENT Liable for negligent r_____ carried out by an employee: Hu_____s v Power Ltd (1988)Liable for criminal acts of employee, s_____ goods hired to protect: J____ & Johnson v CP Security Ltd (1985) VICARIOUS If the employee is found not to be acting in the course of employment, the injured party can only seek compensation from the employee p______lyD___fy v Orr (1941)A butcher and meat salesman hired to accompany his employer on delivery roundsOn one occasion, unknown to employer, he took the van and injured the Plaintiff. [Employer not in c_____ of the incident ]Court held: he was acting o_____ of the course of employment Independent Contractors An independent contractor is not an e An employer is not r______ for the torts committed by an independent contractor which they have employed.Who is an employee? A person employed under a contract __ service, and under the control of employer in respect of what he/she must do, and how, when and where.Independent contractor is employed in a contract __ services Employees have a contract __ service, whereas indepdentent contractors have a contract __ service Walshe v Baileboro Co-Operative (1939) Person engaged to collect cans of milk, carry them to creamery and return empty cans to the farmerA horse and cart was used for transport and the horse injured the PlaintiffHeld: Person was an employee not an independent contractor as it could not be said that he was his own master [control]baileboro was held for _______ liability Castleisland Cattle Breeding v Minister for Social and Family Affairs IR created a distinciton between _____ and c______ Was the Plaintiff an independent contractor or an employee?Provided artificial insemination servicesContract terms alone are not determinativeDay-to-day arrangements examined Degree of controlProfit / Insurance/ pension / Tax Economic Torts economic torts arise out of business or economic relationshipsusually involve pure e_______ loss An action for pure economic loss in n______ can be limited by a failure to establish a d____ of care Economic Torts: P____ offIn______ falsehoodCon____ Passing off aka bootlegging Protects products and the provision of services where: Plaintiff has established a r_____ in a product/service Defendant has mi________ his goods as the Plaintiffs Focus is on whether the consuming public has been, or will be confused by the s_____ties of products/services Damage: whether the Plaintiff has, or will, suffer loss Doolan defines passing off as “U___ competition, where one party, by using d____tion, attempts to obtain economic benefit of the r____ which another has established in trade or business.” Passing off: usually works on a casual, un____ shopperincludesmisleading n____, p____, des_____ For Passing off, the Plaintiff must prove that: The plaintiff has a commercial r____ associated with the product/serviceThe defendant made a mis_______tion confusing customers through use of the plaintiff’s reputation and,The misleading of customers has, or is likely to cause an d______ /loss on the plaintiff’s business Injurious Falsehood Statement about b_______ as distinct from the person (which distinguishes it from de______) Action can be taken in injurious falsehood where false s________ relates to property/goods/business The elements to bring an action in the tort of injurious falsehood are: P______tion of an untrue representationM______ intentActual d_____ (i.e damage of some financial value) Untrue representation in injurious falsehood false s________t which is harmfuldirected at b______ , not personE.g. the Defendant product is better than the Plaintiff’s product caseDe B____s abraisive products vs international GM Defendants published what was alleged to be a ‘scientific study’ falsely denigrating the claimant’s products in order to boost sales of their own products. Court held that the Defendant had m______ issued an untrue statement, which could cause P to suffer d____. Malicious Intent in injurious falsehood: Malicious intent - interpreted to mean the defendant knew the statement to be un____ or that he made it with the intent of causing i______ to the plaintiff. “if a trader takes the time to dress up their advertising material in this manner … they must stand by it; and if it contains …statements in disparagement of the Plaintiff’s goods … on investigation those statements prove to be false and the Plaintiff can show malice …they must answer for it.” De Beers Abrasive Products v International General Electric Damage injurious falsehood Damage might be in the form of proof that property has lost its v___e, or that business has lost customHowever, damage is not so difficult to satisfy here as damage will be inferred/assumed in most cases where the words are calculated to cause economic loss to the Plaintiff Conspiracy This tort is concerned with at least __ people deliberately using their c_____ power to harm the plaintiffAs with latter torts, these actions can arise in the area of in_____ relationsThere are three elements of this tort to consider: 3 elements of conspiracy: C_______ -conspiracy requires at least two people to combine together deliberately for an agreed purpose and to implement that purposeUn_______ object or means-to be actionable, a conspiracy must either have an unlawful purpose or involve the use of unlawful means to attain an otherwise lawful objectiveD_____ - proof of actual damage. Defamation law covered by: The C____tionThe C_____n LawThe D______n Act 2009 Defamation is the pi______tion of a false statement which injures a person’s r____tion in the eyes of r_____ble members of the public. Since the 2009 defamation act, actions against defamation bus be brought within _ year(s) from date of publication, in rare cases 2 years For a Plaintiff to succeed in a defamation action, they must prove: 1.The statement must be d______y i.e where the words tend to lower the plaintiff in the estimation of right thinking members of society generally 2.The statement must refer to the pl_____ff expressly or by implication, in such a way as to be reasonably understood by others as referring to them 3.It has been pub____ by the defendant, i.e communicated to at least one other person Bennett v Quane (1948) A doctor said “He brought an action in the CC instead of the DC to get more costs”Held: words were d______y as they suggested the solicitor only brought a case to higher court to secure more money A statement consists of: made orally or in w____gvisual i_____ and gesturesbr____st on radio, TV or published on internetel_____c communications C______an v Kearns Ltd (1946) Plaintiff accused of stealing goods from a shopAccusation was made in a p____ street in front of othersHeld: This was a publication of a false statement and d_______ Defences are set out in the Defamation Act 2009 T____Absolute P______Q_______ Privellige H_____ OpinionC_____ to publishFair and Reasonable p_____ion on a matter of public interestInn______ PublicationOffer to make a______ds Truth The defendant must prove that the statement is ____ in all material respectsThe tort of defamation “protects those whose reputation has been unlawfully injured. It affords little or no protection to those who have, or d____ to have, no reputation deserving of legal protection” Per Keane CJ in Cooper Flynn v RTE (2004) Absolute privilege No action lies for defamation, however false or malicious the statement, if it is made in the Oireachtas (pa_____ment) or in the European Parliament (also covers statements made in the course of j_____ proceedings by judges, counsel, juries or witnesses; and fair and accurate reporting of proceedings in public) Constitution protects right to freedom of e_____ which must be balanced with right to protection of good name Qualified privilege attaches to communications where the informant has a legal, moral or social d____ to communicate the information and the recipient has a similar duty to r_____ it. Honest Opinion No action lies for defamation where a statement is based on an opinion and that opinion was honestly held- Def must prove that- he b______ in its truth & opinion based on proven (honestly believed) facts Consent to Publish It is a full defence to prove that the plaintiff c_______ted to the publication of the statement in respect of which the defamation action was brought Fair and reasonable publication on a matter of public interest (s.26 Defamation Act) The defendant must prove that the statement was published in: g____ faith & for the purpose of a subject of public b___t and interest;in a manner that did not exceed what is reasonably sufficient; andthat it was fair and re_____ble to publish the statement Innocent Publication- A full defence is available to those are involved in production of material where it can be proven that the defendant: was not the au____ , editor or publisher of the statementtook reasonable c____ in relation to its publications;did not know, and had no reason to believe, that it would lead to d______ proceedings Example: person will not be considered to be (a) if responsible only for printing, production, distribution of printed material Offer to make amends This is a written offer by the defendant to publish a suitable correction or sufficient a____ and to pay such damages, comp_____ and costs as agreed