Business Law (BLM1007) Tort of Negligence Notes PDF

40701102\_s **Business Law (BLM1007)** **Topic 2 : Law of Torts (Negligence)** [Topics: ] - - - - - [Lesson Objectives (Lectures 3 &4):] By the end of this topic, you will be able to: - Understand what a tort is - Distinguish between Torts and Crimes, and Torts and Contracts -...

40701102\_s **Business Law (BLM1007)** **Topic 2 : Law of Torts (Negligence)** [Topics: ] - - - - - [Lesson Objectives (Lectures 3 &4):] By the end of this topic, you will be able to: - Understand what a tort is - Distinguish between Torts and Crimes, and Torts and Contracts - Describe the elements and defences for the Tort of Negligence - Describe the Defences available to a Defendant - Identify the Remedies available **\* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \* \*** **\ ** **1. The Law of Torts** **1.1 What is a Tort?** **A tort is a civil 'wrong'.** The law of torts governs the behaviour of one person towards another person. It sets out the circumstances under which a person may seek recourse against the 'wrong acts' done to them by another person. - - - - **1.2 Types of Liability in Tort** There are 2 possible kinds of liability arising in tort law. **\ ** **2. Difference between Tort and Criminal Law, Contract Law** **2.1 Tort vs Criminal Law** **2.2 Tort vs Contract Law** **\ ** **3. Negligence (The Three Elements)** **3.1 What is Negligence?** - the Defendant owed the Plaintiff a **duty of care**; - the Defendant **breached** the duty; and - **Damage** was **caused** by the breach. **3.2 Duty of Care** **\ ** **[Facts:]** P (Mrs Donoghue) and her friend went to a café to have tea. The friend bought P a bottle of ginger beer. The bottle was opaque. P poured half of the ginger beer into a glass and drank it. She then poured the rest into the glass and saw the remains of a decomposed snail. She claimed to have suffered illness as a result of drinking the snail, and sued D (the manufacturers of the drink) for negligence. The reason for asking these questions is to prevent situations where it would be unfair or unreasonable to impose a duty of care. This was seen in the following English case. **[Case law]** [Hill v Chief Constable of West Yorkshire \[1990\] 1 AER 1046] **[Facts:]** A young woman was murdered in 1980 by the serial killer known as the 'Yorkshire Ripper'. The murderer had already killed 12 other women, beginning in 1975. The victim was the Ripper's last victim. P, the victim's mother sued D, the police, for negligence, claiming that D had not done their job properly -- if D had caught the murderer earlier, P's daughter would not have died. **[Held:]** The court decided that D was not liable as there was no proximity between D and P. The court also said that, even if there was proximity, it would be neither fair nor reasonable to impose such a burdensome duty on D, for public policy reasons. To decide otherwise would be to allow every crime victim or their family to sue the police for failing to catch every murderer or offender. Once a duty of care is established, the next question to ask is whether the Defendant has breached that duty of care. **\ ** **3.3 Breach of Duty** **3.3.1 Breaching of Duty** **3.3.2 The 'Reasonable Man' test ('RMT')** - - - - **Case law** [Haley v London Electricity Board \[1965\] AC 778] **[Facts]**: D were contractors who dug a hole in the pavement of a London street. Instead of cordoning off the area around the hole, they left a sledgehammer diagonally across the hole as a warning to the public. P, who was blind, missed the hammer, fell into the hole and was hurt. **[Held]**: It was held that even though the warning may have been sufficient for sighted persons, it was inadequate for blind people. And since one in 500 people is blind, there was a large enough group of blind people for D to foresee the danger to them. A reasonable contractor should have known this. **3.3.3 *Res Ipsa Loquitur*** ('the thing speaks for itself') In civil cases, the Plaintiff has [the burden of proof]. **This means that the legal burden is on the plaintiff to prove all the elements of his claim and not for the defendant to disprove the claim.** This is similar to the adage found in criminal law - "innocent until proven guilty". But occasionally, situations arise where the plaintiff is unable (or will find it very difficult, almost impossible) to explain exactly what happened that led to the damage. *[Example]: P is in a cable car going to Sentosa when the cables suddenly break, hurtling the cabin into the water. How is P going to prove exactly what it was that D did or did not do which led to the accident? Remember, if P fails to prove breach of duty, he goes without remedy.* This harsh situation led to the use of the maxim ***Res Ipsa Loquitur*,** i.e. the thing speaks for itself. **Where the accident is [so obviously] due to someone's negligence, the courts allow the plaintiff to use the *res ipsa* maxim to avoid having to prove the [2^nd^ element of breach of the duty of care. ]** **3.4 Damage caused** An example of this would be a typical road accident. If a negligent driver loses control of the car because of excessive speed and crashes into a pedestrian, killing him instantly, then clearly it is the defendant's negligent act of careless driving that **in fact caused** the plaintiff's death. In proving the third element of negligence, the plaintiff has to show that the defendant's breach **in fact** caused the plaintiff's loss i.e. factual causation. **3.4.1 The 'But For' Test** The test used to decide if the Defendant in fact caused the Plaintiff's damage is called the '**but for'** test. The test asks the question: *"Would the damage have happened BUT FOR the defendant's negligence?"* If the answer is 'no', the Defendant fails the test and is liable. **Case law** [Barnett v Chelsea Hospital \[1969\] 1 QB 428] **[Facts]**: Three men went to a hospital, informed the nurse that they had stomach pains and were vomiting. D, the duty doctor, refused to examine them and they were told to see their own doctor. Shortly after that, one man died. P, his widow, sued. Evidence showed that the dead man had consumed arsenic, a deadly poison, and would have died even if he had been treated. **[Held]**: The court held that D owed a duty of care to examine the deceased. In refusing to do so, D had breached that duty. But would the death have happened ***but for*** (i.e. if not for) D's negligence? Yes, even if the deceased had been treated by D, the death would have happened. Hence, D's breach of his duty of care was not the cause of the death and D was therefore not liable. In some cases, it is clear who caused the damage. However**, in other cases the Plaintiff's damage may have been caused by more than one Defendant. In such cases, the court may order both Defendants to bear the cost.** **Case law** [Fitzgerald v Lane \[1989\] AC 328] **[Facts]**: P was crossing a road when the 1^st^ defendant's car knocked him down. As P was lying on the road, he was run over again by the 2^nd^ defendant's car. P suffered tetraplegia (multiple paralysis) but could not prove which defendant had caused it. **[Held]**: Both Defendants had 'materially contributed' to P's injury and therefore both were jointly liable. **3.4.2 Remoteness of Damage** In order to determine what damage is too remote to attribute to D's negligence, the courts apply the **[reasonable foreseeability test]**, i.e. **'Was the *[kind of damage]* suffered by the plaintiff *[reasonably foreseeable]* by the defendant *[at the time of his breach]*?'** If **yes**, then D is liable for those losses. The reasonable foreseeability test comes from the landmark decision in the following case. **Case law** [The Wagon Mound (No.1) \[1961\] 1 AER 404] **[Facts]**: D were the owners of *The Wagon Mound*, a cargo ship. D negligently discharged oil from the ship into Sydney Harbour. The wind and tide carried the oil to P's wharf where welding operations were being carried out. D assured P that the oil, lying in a thin film over cool water, was unlikely to ignite. P continued to do welding work. Two days later, molten metal from the welding fell onto some cotton waste which had collected on the oil. The cotton acted as a wick, and set the oil on fire. The fire destroyed the wharf and ship moored there. **[Held]:** D was liable for the pollution in the Harbour because this was reasonably foreseeable at the time of the oil spill. But D could not be held liable for the wharf fire because it was not reasonably foreseeable that spilling oil could lead to destruction by fire. It was said that the damage caused by the fire was one that was \"too remote\" - it was not a foreseeable consequence of D's negligence. **3.4.3 *Novus Actus Interveniens*** The courts will also not hold D liable if the damage caused to P resulted from a chain of events and there was an **[intervening event]** which broke the chain of causation. This is known as the **doctrine of *novus actus interveniens*** i.e.. any damage that happens after the intervening event is considered too remote. The intervening act may be an act of nature, an act of a third party, or the P's own act. *[Example]: D negligently causes a gas leak on P's farm. All of P's chickens are poisoned and die. Lightning strikes the gas and the whole farm explodes in flames. D may be liable only for the loss of P's chickens, but not for the destruction of the farm, as that was caused by an intervening act of nature.* However, in other cases, there may be a chain of events involving an **intervening factor** which complicates the issue. **3.4.4 Pure economic loss** - - - **[\ ]** **[4. Defences to Negligence]** - - - **4.1 *Volenti non fit injuria*** This literally means 'to one who is willing, no harm is done'. In other words, the Plaintiff who consented to the risk is said to have given his consent to the act, and may not later sue on it. It is a [complete] defence. Hence, if the Defendant succeeds in relying on the 'volenti' defence, he would not be liable to the Plaintiff at all. **4.2 *Ex turpi causa non oritur actio*** **4.3 Contributory negligence** **\ ** **5.1 Damages** (common law remedy) - **Nominal damages** - **Aggravated damages** - **Exemplary or punitive damages**[^2^](#fn2){#fnref2.footnote-ref} **5.2 Injunction / Specific Performance (equitable remedies)** - An **injunction** refers to a court order to stop a defendant from embarking on a tortious act or from continuing such an act. An example would be where a Defendant is planning to publish defamatory material on the Plaintiff or where a Defendant plans to cause a nuisance or a trespass onto the Plaintiff's property. An injunction would be useful to the Plaintiff as it helps prevent the damage before it begins. - **Specific performance** is an order of the court which compels a party to perform a particular act (under a contract). ::: {.section.footnotes} ------------------------------------------------------------------------ 1. ::: {#fn1} Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency \[2007\][↩](#fnref1){.footnote-back} ::: 2. ::: {#fn2} See the case of *Cassell & Co Ltd v Broome* \[1972\] AC 1027[↩](#fnref2){.footnote-back} ::: 3. ::: {#fn3} See the case of **Goh Chok Tong v Jeyaretnam Joshua Benjamin** \[1998\] 1 SLR 547[↩](#fnref3){.footnote-back} ::: :::