the law of tort - uni trier · nervous shock (psychiatric illness) ... once found liable for a...

RC Steenkamp

16 May 2018

The Law of Tort

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?

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

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

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

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?

DAMAGES AS A REMEDY

DAMAGES

Nominal Ordinary

(Compensatory)

General

(non-pecuniary)

Special

(pecuniary)

Exemplary (punitive)

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?

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?

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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