the law of tort - uni trier · nervous shock (psychiatric illness) ... once found liable for a...
TRANSCRIPT
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RC Steenkamp
16 May 2018
The Law of Tort
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RECAP
What is a tort?
How is it different from criminal law and law of contract?
What interests does tort law protect?
What is defamation?
Is trespass to person a crime or a tort?
Give an example of public and private nuisance?
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GENERAL RULE
Has to be remembered that the general criteria/standard for judging the behaviour of the defendant is that of the reasonable person
This standard is abstract and difficult to define
▪ Characteristics of the ‘reasonable man’ will vary with the circumstances of each case
▪ Generally, the ‘reasonable man’ can be said to be someone who is ‘ordinary, typical; he is neither particularly courageous, nor particularly timid; neither reckless nor over-careful; neither an expert in law nor totally without common sense’
Variety of factors used to establish whether the conduct was reasonable
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THE MAIN TYPES OF TORTS
Following torts are of relevance for the present lecture:
1. Defamation
2. Nuisance
3. Trespass
4. Strict Liability
5. Negligence
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STRICT LIABILITY
This refers to a tort where liability is
imposed despite a person not acting either
intentionally or negligently
Rylands v Fletcher
A person who collects something on his
land which is likely to cause harm if it
escapes is said to be strictly liable for any
damage caused by its ‘escape’
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NEGLIGENCE
Meaning of the term ‘negligence’?
Probably the most common tort
As a tort, negligence is more than carelessness
▪ NB!! Negligence is the breach of a duty to take
care
▪ Donoghue v Stevenson
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NEGLIGENCE
3 (elements) questions to ask whether or not a tort of negligence has been
committed:
1. Did the defendant owe the claimant a duty of care?
2. If yes, did the defendant breach that duty?
3. Did the defendant’s actions cause damage to the claimant?
Various types of damages
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1. Duty of Care +
2. Breach of that Duty +
3. Damage
Negligence
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NEGLIGENCE
Negligent acts can cause different types of damage including
▪ Physical damage – generally easy to quantify
▪ Financial loss
▪ Nervous shock (psychiatric illness)
▪ Pure economic loss
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REMEDIES
Two main remedies are available for victims of tort:
1. Damages
2. Injunctions/interdicts
Generally, damages are the most important remedy but certain situations cannot always be rectified by damages alone
▪ Injunction and trespassing?
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DAMAGES AS A REMEDY
DAMAGES
Nominal Ordinary
(Compensatory)
General
(non-pecuniary)
Special
(pecuniary)
Exemplary (punitive)
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DAMAGES AS A REMEDY
Once found liable for a tort, damages is the amount of money a
defendant has to pay to the claimant
The damage suffered by the claimant is divided into
pecuniary and non-pecuniary loss
Purpose of damages?
▪ Exception to the rule – punitive damages?
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DEFENCES
Even if all elements of a tort are proven, a tort claim may still fail if
the defendant can rely on a defence
▪ That is, a legal justification for the defendant’s actions
Complete vs partial defences?
General vs special defences?
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GENERAL DEFENCES
Volenti non fit injuria –
▪ ‘To one who volunteers, no harm is done’
▪ Consent as a defence
▪ Morris v Murray
Ex turpi causa non oritur actio –
▪ Refers to the situation where injury arises as a result of
the parties engagement in illegal activities
Necessity
▪ Even if X’s action caused some damage, greater loss would have occurred from his inactivity
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SPECIAL DEFENCES
Defamation:
▪ Freedom of speech
▪ Truth as a defence
Trespass
▪ Right of way
Vis major as a special defence
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