unit9Torts_Bookbooming

TORTS Nguyen Thu Huong Faculty of ESP FTU

What might happen when-• A doctor forgot a swab inside a patient after an operation?

• A young student rode her bicycle on the wrong side of the road and this caused a death of a man riding his motorbike on the right side?

• A person slipped in a supermarket and broke her leg because the floor was slippery?

Definition • Tort law deals with civil wrongs, except those that arise from contract problems. • The purpose of torts is to compensate an injured party through the award of damages for the injuries incurred during a tortious act.

Questions for the courts • Under what conditions should liability be imposed?

• What factors affect liability?

• What types of damages/remedies are presumed sufficient under the law to redress these wrongs?

Categories 1. Intentional torts 2. Negligent torts 3. Strict liability

Intentional Torts • A protected right has been intentionally breached.

• It’s difficult to prove the defendant’s state of mind.

• Intent is proved through circumstantial evidence: defendant’s conduct, surroundings, knowledge, perception.

Intentional Torts 1. Personal torts: assault, battery, false imprisonment 2. Property torts: trespass to land, trespass to chattels

False Imprisonment • The plaintiff has allegedly been unlawfully confined by the defendant.

• Proving elements: – Intent to confine a person – Actual confinement – Awareness of injury to plaintiff due to confinement – Prevention of exit or no safe exit by plaintiff.

– (Defendant’s awareness of confinement)

Trespass • Prohibits the unauthorized entry of a person or thing onto the property of another. • Is the right to exclusive possession of the land.

Trespass – Prima facie • Must include an act coupled with the intent to cause entry by defendant, and an invasion of the plaintiff’s land.

• Damages are not required to be proven.

• Only when trespass is negligent, it is then required to show actual damages.

Trespass cases • Property interests: failure to remove something from the land.

• Remaining on another’s land after a privilege.

• Causing another to enter plaintiff’s land • The rights inherent in the possession of land extend above and below the surface.

Torts • Intentional torts: – Personal torts: false imprisonment – Property torts: trespass

• Negligent torts • Strict liability

Negligence • Negligence determines the standard of care imposed upon the public. • All persons are under a duty to conduct themselves in such a manner as not to create unreasonable risks of physical harm to others.

To impose liability on Negligence 1. The defendant had a duty of care 2. There was a breach of that duty by negligent conduct 3. The act caused injury 4. The act is not subject to the defenses of assumption of the risk or contributory negligence

Contributory Negligence Act 1945 • If the damage suffered as a result of negligence was partly caused by contributory negligence of the claimant, his claim is proportionately reduced

Example 1 • A factory has its own electrical generator, the building containing the generator is left unlocked so as to allow rapid access in the event of fire, but there is a notice on the door ‘High voltage. Trained electricians only’. A child of ten is negligently allowed by his parents to play near the building. The child enters the building, suffers an electric shock and is injured.

Example 2 • A boy of 9 bought petrol from a garage stating falsely that his mother’s car had run out of petrol down the road. It was supplied in an open margarine tub. The boy and a friend of 7 wished to play Red Indians. The set fire and the elder boys was badly hurt.

• Can the garage plead contributory negligence by the boys?

Standard of Care • Must be exercised: a reasonable person would use under similar circumstances. • This standard is an external, objective in which all people are deemed to use certain minimal levels of care in all of their activities.

Proximate Cause • If the defendant is found to have had a duty to protect the plaintiff from the consequences of the harmful act, and breached that duty, then there is proximate cause.

Proximate Cause • Determinations of proximate cause by courts are true exercises in the use of: – Precedent and legal reasoning – Case law – Public policy arguments – Common sense

Proximate Cause • A person does not have the same duty of care to all persons.

• A person only has a duty of care to someone with whom that person logically would be likely to interact.

• Reasonable foreseeability

Intervening causes • The courts have to determine if another act, either by a person or natural force, comes between the tortious act committed by the defendant and the plaintiff. • Foreseeability is also an issue in making this determination. • If the defendant should have foreseen the intervening act, then lack of foreseeability is not a defense.

Torts • Intentional torts: – Personal torts: false imprisonment – Property torts: trespass

• Negligent torts: – – – –

Proving elements Standard of care Proximate cause Intervening cause

• Strict liability

Strict Liability • Is liability without fault. • Under certain circumstances a plaintiff may be allowed recovery even though there is no fault on the part of the defendant. • A finding of no legal fault is not the same as a finding of no moral blame (legally innocent but morally guilty)

Strict Liability • Blasting, storing inherently dangerous substances, keeping wild animals – allowable as long as no harm occurs.

• Sellers and manufacturers can be held responsible under strict liability even if the seller or manufacturers exercised all reasonable care in production and sale of the product and even if there is no privity of contract.