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A part of our civil liability systemPrincipally concerned with imposition of legal liabilities andthe consequent remedies in respect of civil wrongscommitted against recognizes entitiesThe liability is not dependant on contractual agreementDeals with wide range of situation - providing remedies forvarious injuries.The word tort itself - French for wrong -now to mean awrong recognized by law.Winfield - tort as a wrong the victim of which is entitled toredress / specific civil wrong or injury.Law of torts has two function:- to determine when a person has to pay compensation for harm

wrongly caused.- to determine what conduct may be stopped or regulated by the

courts order.

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Kinds of interest that law of torts protect against:a. person - assault, battery, personal injuryb. property - trespass, nuisance, interference with

goodsc. financial - deceit, economic lossd. reputation - defamation, libel, malicious

prosecution

A tort arises not simply out of the infliction of injuryto the interest stated above but in the infliction of alegally recognized injuryLiability in tort may arise:

1. Primary - where a person is liable for his own act oromission in breach of a legal duty

2. Vicarious- Where a person is liable for the act oromission of another with whom he stand in somespecial relationship

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NegligenceVicarious Liability

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Negligence as an independent tort isdefined as the breach of a legal duty totake care - as a result of which -theplaintiff suffers damage.To succeed in an action for negligence -plaintiff must prove ALLthe elements ofnegligence:

First element: Duty to take careSecond element: Breach of the dutyThird element: Breach that causes injury/ damage

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1. The Duty To Take Care

A defendant will only be liable if he owes theplaintiff a duty to take care If there is no duty to take care, a negligent act

has no legal consequence A duty of care exist in normal circumstances

where if a person does not take the usualprecautions, another person or his property maybe injured/damaged

To test the existence of duty of care - Donoghue

v. Stevenson (1932) - The N eighborhoodPrinciple

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The Neighborhood Principle:The rule that you are to love your neighbour becomes in lawyou must not injure your neighbour, ..you must takereasonable care to avoid acts or omission which you can

reasonably foresee would be likely to injure your neighbour. Andthe lawyers question who is my neighbour..persons who areso closely and directly affected by my act that I oughtreasonably to have them in my contemplation as being soaffected when I am directing my mind to the acts or omission inquestions

The neighborhood principle is an objective test inthe sense that the court will a hypothetical question; Would a reasonable man, who is in the same

circumstances as the defendant, foresee that hisconduct will adversely affect the plaintiff?

If the answer is YES, then the plaintiff is a neighbour ofthe defendantIf the answer is NO , plaintiff not a neighbor, no duty totake care Palsgraf v. Long Island Railroad

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2. Breach Of The Duty

Plaintiff must show not only that there is a duty to take care -

but that the duty have been breached i.e. the defendant doessomething below the minimum standard of care required

Standard of care to determine breach or not - that of a

reasonable man i.e. would a reasonable man have acted as

the defendant has done if the reasonable man was faced with

the same circumstances?

Question: who is a reasonable man?

Factor to consider Level of intelligence e.g. child defendant

Skill and expertise in a particular field e.g. professionals

Level of experience e.g. learner driver

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The standard of care too is largely dependant on the facts

of the case

Several things to take into consideration in determiningthe degree of care:

Magnitude of the risk

Probability of the injury occurring

Bolton v. Stone case of cricket ballSeriousness of the injury

Paris v. Stepney Borough Council

Importance of the object to be attained

Watt v. Hertfordshire

Practicality of precaution

See Government of Malaysia v. Jumat bin Mahmud compared with

Mohamed Raihan bin Ibrahim v. Government of Malaysia

See also Latimer v AEC closing of factory not practical compared to the

risk

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3. Causation and Damage

There must be some form of damage or injury as a result of thebreach - whether physical or to property

Exception - pure economic loss

The question that arise: whether the defendants conduct has infact caused the plaintiff's damage?

This is known as the But For test The defendant would not be liable if damage or injury would

have occurred in any event without the defendants fault Barnett v. Chelsea & Kensington Hospital

Plaintiff does not have to establish that the defendants breach ofduty was the main cause of the injury, as long as it materiallycontributed to the harm - McGhee v. National Coal Board

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The damage or the injury was of the type which thelaw allows recovery that is - not too remote - mustbe foreseeable although the extent and method ofthe damage is irrelevant

Vacwell Engineering case bigger explosionthan anticipated

Defendant too must accept the plaintiff as he is theegg-skull rule

Smith v. Leech-Brain & Co injury causing lipcancer

Intervening ActsRouse v. Squires compared with Knightley v.Johns

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2. Res Ipsa Loquitor Where the thing speaks for itself When the plaintiff raises the maxim, he is asserting that based on

the evidence given, he has proven, prima facie, that thedefendant is negligent The main purpose is to prevent injustice as otherwise the plaintiff

would be required to prove details of the cause of the incident,which he may not know

The maxim is not applicable when all the facts relevant to thecause of the accident are known

Nevertheless - the accident wouldnt have happened if not forsome negligence on the defendants part.

Originated from the rule in Byrne V. Boadle Three requirements:

The thing that cause the damage must be under the defendantscontrolThe damage is something that will not happen if the defendant takesadequate precautionThe cause of the accident is not known

See also Gee v. Metropolitan Railway, Cassidy v. Ministry ofHealth

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3. Psychiatric Illness / Nervous Shock

A positive psychiatric illness or physical damage as a result of physiologicaltrauma experienced by the plaintiff due to the defendant's negligent actFor the purpose of recovery of damages not necessary that the plaintiff showsdirect impact or fear of immediate personal injury

Claimant may recover damages arising from nervous shock resulting frominjury to near relatives or fear for such injury

The case of Alcock & Ors v. Chief Constable of South Yorkshire Police laiddown the requirements that need to be proven to succeed in a claim fornervous shock:

It must be foreseeable that damage in the form of psychiatric illness wouldoccur

Foreseeability depends on the nature of relationship between the plaintiffand victim love and affection

The proximity between the plaintiff and the accident in time and space i.e.the plaintiff must either see, hear or be physically present at the scene ofthe accident immediately after the immediate aftermath test

The means by which the shock has been caused - the psychiatric harm

must come through the claimant's own sight or hearing of the event or itsimmediate aftermath

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Zainab Ismail v. Marimuthu Court allowed the plaintiff's claim as a result of seeing her daughter

knocked down by the defendants lorry

McLoughlin v. OBrian The plaintiff's husband and her three children were involved in a road

accident caused by the defendant's negligence. The plaintiff wasinformed about the accident two hours after the event, and she was

taken to the hospital where she was told about the death of one of herchildren and saw the injuries to her family in distressing circumstances.The House of Lords was unanimous in holding that the plaintiff's claim forpsychiatric illness should succeed

Bourhill v. Young A pregnant lady after alighting from a tramcar hear noise of collision and

after the accident she went to the spot, saw blood spot and got shock.Court denied her claim because it was not reasonably foreseeable thatsomeone not closely connected to the victim would suffer nervousshock.

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Vicarious Liability is an exception to the principle that a person shouldnot be held liable in absence of fault of his own.

Vicarious liability refers to situation where, for example Ali is liable toChong for damage or injury suffered by Chong due to the negligence orother tort committed by Bobby.

Ali need not have done anything wrong and need not owe a duty ofcare to Chong.

Most important condition for imposing a liability on Ali is the nature of

relationship between Ali and BobbyUnder vicarious liability - employer liable for the negligent act of hisservant/ employee.

The reasons why an employer has to be liable for the negligence of theemployee :

Employer employ the negligent worker Employer failed to control the employee Employer benefit from the employees work - set the whole thing in motion Employer has deeper pocket

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Requirements of Vicarious Liability : Wrongful act

The court will see whether a tort has been committed

The existence of a special relationshipThe employer will only be liable if the tort iscommitted by his employee/ agentIf the tort is committed by independent contractor,then the employer will not be liableSeveral tests to determine existence of contract ofservice:Control test

Integration TestMultiple Test

The tort is committed by the employee during the

course of employment

Example of cases: Century Insurance Co. Ltd v. Northern Ireland Road

Transport Board (1942) Rose v. Plenty (1976)

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1. Volenti Non Fit Injuria Prevents the defendants wrongful conduct from being a

breach There must be consent or assumption of risk by the plaintiff The consent or assumption of risk must be voluntary

whether express or implied

There must be full knowledge of the nature and extent ofrisk of injury Must be to the act complained of

2. Inevitable Accident Something which is not avoidable by any such

precautions as a reasonable man could be expected totake Defendant must prove that what happened is beyond his

control and could not be avoided by the exercise of skilland care e.g. latent defect in a vehicle

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