AN INTRODUCTION TO THE LAW OF TORTS

 

1. The Concept of Torts

Tort law is the field of law which recognises and recompenses injuries inflicted upon a     persons body, dignity and privacy, to a person’s property or proprietary interests ina     business. Torts are civil wrongs in which the injured party (or parties as in a class     action) sues the wrongdoer(tortfeasor) for damages to compensate for the infury     suffered or seeks an injunciton to prevent an injury or wrong from continuing. The     injured party must prove that the tortfeasor committed the wrong on a balance of     probabilities. Obligations in tort are imposed as a matter of law.

2. Tresspass and the Case

should action be framed as trespass vi et armis or case? (differentiate between direct     immediate injuries and consequential ones)
Scott v Shepard[1558-1774] All ER- (lighted squib) he who does the first wrong is answerable for all the consequential damages
Leame v. Bray[1803](KB)- ( collission of carriages- result of negligence or tresspass?) whether or not there is intent to harm is immaterial, that injurious act was the result of immediate application of force is enough to consitiute trespass Williams v Holland[1833](CP)- gave P choice between tresspass and case when there was a direct negligent act – where injury is caused by nrgligence can be framed as action on the case even when injury is result of direct harm- easier to show negligence than direct chain of events
Holmes v. Mather[1875](Exch)-if awrongful act as a result of direct force whether intentional or a result of negligence does an injury, the remedy is tresspass, if the act is not wrongful for either of these reasons no action is maintainable- act must be wrongful to be actionable!! limits framing action in case Cook v. Lewis[1951](SCC)-onus rests upon D to establish absense of intention and negligence when injury is the result of the direct application of force(Stanley v Powell)

 

3.The Basis of Imposing Liability in Tort Law

OBJECTIVE

1. Absolute Liabililty: D held liable if his conduct casues P’s loss- essential issue is causation not fault
2. Strict Liabilty: liability w/o intent or negligence, w/ focus on defect and causal connection
3. Negligence: failure to take reasonable care to prevent forseeable harm to others(special rules of proof

SUBJECTIVE

4. Intentionally Inflicted Harm: i)express
ii)implied/imputed/constructive
iii)transferred(for directly caused injuries) as well as assault, battery, tresspass to land and chattels, false imprisonment

II INTENTIONAL INTERFERENCE WITH THE PERSON

1. Basic Principles of Liability

DEFENDANT WILL ONLY BE HELD LIABLE IF HIS CONDUCT IS BOTH VOLUNTARY AND INTENTIONAL

a) VOLITION
-conduct must be voluntary and conducted by a concious mind: ability to appreciate the     nature and quality of ones actions, not whether conduct is right or wrong
Smith v Stone[1657](KB) “…that it is the trespasse of the party that carried the defendant upon the land, and not the trespasse of the defendant”

b) INTENT
– desire by actor to bring about certain consequences or results, rather than desire to do     act itself, intent need not be hostile – proof of intent does not automatically mean liabilty
-means of imposing liability for unintended consequences:
i) IMPUTED (CONSTRUCTIVE)
– where consequences are subjectively unintended, but were sunbstantially certain, or     reasonably probable to result from D’s actions
ii) TRANSFERED
– where D has intent to harm one person, but actually harms another, or has the intent to     commit one type of tort, but actually commits another

Note– as the law of negligence developed, these catagories became less important to use, but they are advantagous to the P becasue when pleading in tresspass the onus of proof is shifted to the defendant.

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