Idiot's Guide (Tort) (NBS AB1301)

Tort -

How to deal with tort of negligence? How to establish duty of care? How to establish breach of duty? How to deal with damages resulting from the breach? What can the defendant argue to avoid liability? What if psychiatric harm is suffered?

Tort The law of tort is that set of rules specifying certain actions and omissions as wrongs which gives rise to civil liability 3 types of tort – Tort of intentional conduct, tort of negligent conduct and tort of strict liability Questions asked are always pertaining to tort of negligent conduct, so forget about the other 2

How to deal with tort of negligence? Tort of negligence covers both acts and omissions. (pg 480) Who owes tortious duties? Everyone. To make sure that they do not harm other people’s rights and property. To succeed in claim under negligence, 3 elements must be proven (Establish in order from left to right):

Tort of Negligence

Duty of care

Breach of duty

Resulting damage

How to establish duty of care? A duty of care is the duty imposed upon a person to take reasonable care for his acts and omissions. To establish a duty of care, the plaintiff must establish that the defendant was under the legal duty to perform in a particular fashion. (pg 481) Spandeck test used in Singapore to determine existence of duty of care Case to cite: Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency (2007) 1) Preliminary requirement - Is there factual foreseeability?  Would the defendant ought to have known that the plaintiff would suffer damage from the defendant’s carelessness? If yes, factual foreseeability established. If no, no duty of care. 2) First prong of Spandeck test – Is there legal proximity?  The closeness and directness of the relationship between the parties (Just establish one) o Physical proximity – in terms of space and time o Circumstantial proximity – in terms of relationship between the parties

Causal proximity – Was the loss or injury sustained a direct result from the course of conduct?  Once established, a prima facie duty of care exists 3) Second prong of Spandeck test – Is there any policy consideration negating the prima facie duty of care? (Quite rare, unlikely to appear)  Meant to prevent floodgates and unfair claims o Is there a contractual relationship between the parties that regulates the rights of the parties? o Relative bargaining positions of the parties? o Any public policy considerations? o

If point 1 and 2 are shown and point 3 is absent, a duty of care exists.

How to establish breach of duty? The basic test of breach of duty of care is “the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do” (pg 486) Case to cite: Blyth v Brimingham Waterworks [1856] The plaintiff must now demonstrate that the defendant breached the duty of care by failing to perform up to the standard of care. 1) Can you argue Res Ipsa Loquitur? If yes, breach of duty immediately. (Extremely unlikely to succeed in arguing)  The breach is so self-evident that the occurrence of the event proves the breach.  Things were under control of the defendant and the accident could not, in the ordinary course of things, have occurred without the negligence of the defendant.  Case to cite: Scott v London & St Katherine Docks [1865] 2) What is the duty of care owed to the plaintiff? 3) What is the standard of care expected of the person who owes the duty?  The standard of care is the level of care which is expected to be exhibited in the defendant’s conduct. o Level of skill – The level of skill required is that of a reasonable man in the shoes of the defendant. If the defendant’s conduct matches the level of skill expected of him, standard of care met and duty of care not breached o Case to cite: Wells v Cooper [1958] o Likelihood of injury – Is the likelihood of injury to the plaintiff high? If yes, higher standard of care expected o Case to cite: Bolton v Stone [1951] o Seriousness of injury – Is the injury serious? If yes, higher standard of care expected o Case to cite: Paris v Stepney Borough Council [1951] o Cost of avoiding risk – Are the steps taken to avoid the risk equivalent to the risk of injury? o Case to cite: Latimer v AEC Ltd [1953]  If the defendant’s conduct does not meet the standard of care, duty of care breached.

How to deal with damages resulting from the breach? The plaintiff must now prove that he suffered damage or loss as a direct result of the breach 1) Establish causation - Did the breach cause the loss? (pg 490)  Does it pass the “but-for” test? (Causation in fact) o But for (if not for) the , the plaintiff would not have suffered  Is there a new intervening act that limits legal responsibility? (Causation in law) If the “but-for” test is passed, and there is no new intervening act, then the breach is said to cause the damage. If there is a new intervening act, chain of causation is broken. 2) Establish remoteness – 2 tests.  Direct Consequences test (Less preferred) o Someone who acts negligently should be responsible for any damage they cause so long as the damage is directly traceable to the negligent act o Case to cite: Re Polemis & Furness, Withy & Co [1921]  Reasonable Foreseeability test (Preferred) o Is the type of damage reasonably foreseeable? o Case to cite: Overseas Tankship (UK) Ltd v Morts Dock Engineering Co. Ltd (Wagon Mound No. 1) [1961] o Exact extent of damage not necessary  Egg-shell skull rule – defendant is liable even if the damage suffered by the plaintiff is more severe than what could be reasonably foreseen by the defendant  Case to cite: Smith v Leech Brain & Co [1962]

What can the defendant argue to avoid liability? 3 possible defences – volenti non fit injuria, contributory negligence and disclaimers (pg 493) 1) Volunti non fit injuria (Difficult to argue successfully)  That which a man consents cannot be considered as an injury  Does the injured party know the full extent of the risks he is consenting to?  Does the injured party voluntarily consent to all of these risks? If volunti non fit injuria is successfully argued, it is a complete defence and the defendant avoids all liability. 2) Contributory negligence  Was the injured party’s injury partly due to his own fault? If yes, contributory negligence.  Stature to cite: S3(1) Contributory Negligence and Personal Injuries Act  Courts will then apportion the liability between the parties.

 Damages claimable is based on determined proportion If contributory negligence is successfully argued, it is a partial defence and the defendant avoids part of the liability. 3) Disclaimers  Essentially exemption clauses for tort  Is the disclaimer valid (in terms of incorporation, construction, unusual factors and UCTA)?

What if psychiatric harm is suffered? General rule is that damages for psychiatric harm is unrecoverable. (pg 495) Exception: 1) Did the claimant suffer severe shock, as opposed to just mere grief or sorrow?  Case to cite: McLoughlin v O’Brian [1983]  The class of persons whose claims should be recognised – the closer the tie between the claimant and the sufferer, the greater the claim for consideration  Proximity of such persons to the accident – closeness in terms of space and time  The means by which the shock is caused – Did the shock come through sight or hearing of the event or of its immediate aftermath?

What to deal with negligent misstatements? Negligent misstatements revolves around negligent statements rather than negligent actions (pg 496) (Super rare, unlikely to appear) Deal with this exactly how you would deal with tort of negligence 1) Establish duty of care  Apply Spandeck Test  Under the dichotomies of the old law, the principles in Hedley Bryne & Co Ltd v Heller & Partners Ltd [1964] would be used to determine duty of care for negligent misstatements o Do not use these principles as Spandeck is now applicable to all types of negligent tort 2) Establish breach of duty of care  Standard of care owed is that of a reasonably competent fellow professional in the same field  Case to cite: Lanphier v Phipos [1838] 3) Determine resulting damages  Causation  Remoteness 4) Possible defences for defendant  Disclaimers Other torts in business involves passing off (pg 506), defamation (pg 507) and inducing breach of contract (pg 508) (Refer to the book if it comes out)

Miscellaneous issues Vicarious liability Pursuant to the tort of vicarious liability, one person may be made answerable for the actions of another. Control required for vicarious liability to occur. 1) Does the employer have any control over the employee?  Eg does the employee report to the employer? 2) Is the tort committed within the ordinary course of business? If yes to both, firm/employer is vicariously liable for the tort of negligence committed by employee