LAWS1100 Study Guide - Final Guide: Cricket Ball, Gastroenteritis, Contributory Negligence
TORTS OVERVIEW:
• What is a Tort?
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estalished i the Eglish laguage as a so fo og.
• A tort is a civil wrong that allows the aggrieved person to sue the wrongdoer for the
recovery of damages for the wrong.
• The damages are awarded by way of compensation for the personal injury, property
damage or economic loss that has actually occurred or that the law presumes to have
occurred.
• Tort vs Criminal Liability
• A crime is an offence against the State, which represents the public interest; the
rationale underpinning criminal law is essentially punishment (although it also
encompasses other objectives such as deterrence and rehabilitation).
• The primary objective of tort liability, on the other hand, is to compensate the injured
person by compelling the wrongdoer to pay for the damage they have occasioned.
• Tort vs Contract Law
• CONTRACT: Contractual obligations arise because the parties have intentionally agreed
to uphold them. Thus, contractual obligations are individually agreed obligations, as
opposed to obligations imposed by law (as in the case of tort and crime).
The rights of the contracting parties are essentially rights to have the promises of the
other party performed.
• TORT: Liability in tort, requires no promise. As said last week, the object of the law of
torts is to protect those general rights of every person which are conferred as a matter
of law.
• The scope of tort law is therefore much broader than the scope of the law of contracts.
• Liability in Tort, Contract and Crime
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• Two types of Torts
• Intentional Torts
• Plaintiff must prove Defendant intended the act and damage was the direct result
of that action - that the Defendant did the action which injured/damaged the
Plaintiff
• Unintentional Torts
• Not intended - but doing something that a reasonable person would not do -
being careless - failing to do something that a reasonable person would do
• Torts: Causing Harm
• With all torts actions, consider whether the act was
• Deliberately Causing Harm
• The tort of trespass
• The tort of defamation
• The tort of passing off
• Carelessly causing harm
• Negligent misstatement
• The tort of trespass (some aspects)
• The tort of negligence
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THE TORT OF NEGLIGENCE
The tort of Negligence is primarily about carelessness, and is by far the most common tort in society
Three requirements of proving Negligence
1. They (the defendant) owes the other person a duty of care
2. That they breach the duty of care
3. The breach causes the other person harm
• Always think - is there a defence?
There are three important areas to consider in any claim:
1. Law of Negligence - (the three stages/requirements)
2. Defences
3. Remedies
Negligence law is found in the civil liabilities act
Requirement 1 - Duty of Care
• In order to prove negligence it must be proven that the defendant owed the plaintiff a duty of
care in the first place
• First common law case to clearly establish the tort of negligence
Case Law: Donoghue v Stevenson [1932] AC 562
o Facts of the case
• Mrs May Donoghue was at a café drinking (allegedly) a ginger beer.
• The drink was bought by her friend, from the retailer.
• Whe the eaide of the dik as poued out ito Dooghues glass, the
remains of a decomposed snail floated out of the bottle.
• It was not possible to detect the remains of the snail, before consuming
most of the contents of the bottle.
• Donoghue suffered nervous shock and severe gastro-enteritis as a result of
seeing the decomposed snail and consuming the contaminated drink.
o Consider this:
• Had Donoghue entered into the contract with either the café owner or the
manufacturer of the product?
• Was the café owner actually at fault for selling this product?
o The argument
• The basis of Dooghues ase as that “teeso, as the aufatue of
the ginger beer (an article intended for consumption and contained in a
container that prevented inspection) owed a duty to her as the consumer of
the article to take care that there was no noxious element in the goods.
o JUDGEMENT
• Lord Atkin (at 578): The question is whether the manufacturer of an article
of drink sold by him to a distributor, in circumstances which prevent the
distributor or the ultimate purchaser/consumer from discovering by
inspection any defect, is under any legal duty to the ultimate purchaser or
consumer to take reasonable care that the article is free from defect likely
to cause injury to health.
o HELD
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Document Summary
Thus, contractual obligations are individually agreed obligations, as opposed to obligations imposed by law (as in the case of tort and crime). The rights of the contracting parties are essentially rights to have the promises of the other party performed: tort: liability in tort, requires no promise. Liability in tort, contract and crime: two types of torts. Intentional torts: plaintiff must prove defendant intended the act and damage was the direct result of that action - that the defendant did the action which injured/damaged the. The tort of negligence is primarily about carelessness, and is by far the most common tort in society. Three requirements of proving negligence: they (the defendant) owes the other person a duty of care, that they breach the duty of care, the breach causes the other person harm. There are three important areas to consider in any claim: law of negligence - (the three stages/requirements, defences, remedies.
