...tries to expound the conundrums of Causation and Remoteness and the role played by them in tort law. They are two closely linked topics and are, more often than not, contingent upon each other. Through this paper, I have tried to discern the line of distinction between the two while explaining how and why they have become topics for contention among legal scholars. The focus of this paper has been on understanding the concepts and the importance they hold in the process of identifying a tortfeasor. The various tests which have been used in the past for identifying the cause and the ‘closeness’ of the cause have also been taken up. They have been discussed in detail using various case laws. The limitations of these tests have been explored as well. Under what condition does a cause, which may have been proximate, gets ignored has also been deliberated and discussed. Finally the paper is summed up with a general solution which can help law courts to decide on the matters in question without getting involved in the technicalities which currently persist. CHAPTER 1 INTRODUCTION 1.1 INTRODUCTION In order to understand the role of causation and remoteness in tortious liability it is imperative that we have a clear idea of what the term causation and remoteness imply in tort law. Very simply put - In a tort case, it is essential to discover whether there was some act or omission by the defendant which caused damage to the plaintiff. Thus causation aims at connecting...
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... The Managing Director (MD) has asked you for written advice on whether the company has any liability in tort law towards Barbara and Clive. With this in mind please produce a report for the MD, which sets out the law relating to negligence and vicarious liability and how it applies to this scenario. Your report should be no longer than 3,000 words. 1 Differences Between Liability in Tort and Contractual Liability Contractual liability concentrates on what is in a contract and the obligations between the two or more parties of the contract. Both parties in contractual liability contracts are controlled by it and the terms stated in the contract cannot be broken. The terms of a contract must be fulfilled by both of the parties; otherwise consequences will follow if one party breaks the terms. Contractual liability contains conducting agreement and liability between businessperson and merchant. Tort law is used in situations where a person has done harm to another person. Liability varies significantly in tort law and contractual law in terms of issues of content. Contractual liability is based on agreement but tort law’s liability is not based on agreement. Also the way court provides compensations and how it deals with these two reflects on the difference between them. Contractual liability therefore concentrates on the contract and liability issues whereas tort of liability concentrates on what kind of harm or loss has the other party caused to the innocent party. In...
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...“DAMAGE AS A CONSTITUENT OF TORT LAW” INTRODUCTION The word tort is of French origin and is equivalent of the English word wrong, and the Roman law term delict. It is derived from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. It is commonly used to mean a breach of duty amounting to a civilwrong. Of the various attempts to define tort, Salmond's definition is rather popular. Salmond defines tort as a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. A tort arises due to a person‟s duty to others in generally which is created by one law or the other. A person who commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one, they are called joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued jointly and severally. The principle aim of the Law of tort is compensation of victims or their dependants. Grants of exemplary damages in certain cases will show that deterrence of wrong doers is also another aim of the law of tort. OBJECTIVES OF LAW OF TORTS i. To determine rights between parties to a dispute. ii. To prevent the continuation or repetition of harm e.g. by giving orders of injunction. iii. To protect certain rights recognized by law e.g. a person's reputation or good name. iv. To restore property to its...
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...-Lord Brown; Sienkiewicz v Greif (UK) Ltd (2011) The Bust for test of causation is said to be fraught with difficulties. How has the law developed to overcome these difficulties? INTRODUCTION Negligence in the law of tort is the failure to exercise the care that a reasonably straight person would exercise in such like circumstances. In tort law, this area of negligence involves harm caused by carelessness and not by intention. The tort of negligence structures a standout amongst the most element and quickly changing zones of obligation in the present day law. Its rise in the 20th century shows the pressure of the social and economic changes on the traditional ways of legal redress for interference with protected interests. The reasonable structure of carelessness is very adaptable and fit for general application. These components have permitted the courts to use the tort in the setting of novel cases for pay. On the other hand, the development of carelessness has not supported the extension of risk and throughout the years, courts have been putting a few limitations on this degree. The tort of carelessness does not right now appear to be set upon some foreordained way of growth as it once had all the earmarks of being. The modern history of tort law started with the groundbreaking judgment of Lord Atkin in Donoghue v Stevenson where Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an...
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...4.1 Apply the elements of the tort of negligence and defences in different business situations Tort is described as an action which causes harm to a person. It is also a law that protects an individual from any harm that may be caused by the unreasonable actions of another. Tort of negligence is considered the unintentional tort. Negligent torts are actions that violated the standard duty of care that caused an unexpected or unintended injury to a person. In negligent tort claims, there are four elements that must be proven by the claimant: a duty to care, the breach of duty, consequential harm, and legal causation or remoteness. * Duty to care: Everyone has a legal duty of care to all. This means that a person shouldn’t do anything reckless that may result to the harm of another. For example, a doctor has a duty to care for his patients by giving them the right treatment and prescribing the appropriate and safe medication. Duty of care in Donaghue -v- Stevenson 1932 was defined as exercising such care as is due in such 'acts or omissions which you can reasonably foresee would be likely to injure persons so directly affected that you ought reasonably to have them in contemplation' and Caparo Industries -v- Dickman 1990 referred also to situations in which it would be fair, just, and reasonable to impose. * Breach of duty: The breach of duty happens when a person fails to exercise a reasonable standard of care to another. He may have intentionally or unintentionally...
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... Business contract shall be defined within the context of law of contract and business law . The former is narrower and the later is wider but all its components are subject to the essential elements of contract. Business law which is also known as mercantile law refers to laws governing and regulating trade , industry and agriculture . It includes laws relating to Contracts , Sale of Goods , Partnership , Companies , Negotiable Instruments , Insolvency , Carriage of Goods , Arbitration..etc. The difference between the law of Tort and the law of Contract is based on obligations and liabilities . In tort the obligations are imposed by law while in contract the obligation of the parties are created by their own free will and mutual consent. Key questions : 1.What are the essential elements of a valid contract in a business context ? Offer and acceptance , intention to create legal relations, consideration ,privity of contract . Types of contract: - face to face; written ; distance...
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...In the first instance, if you have any queries regarding the teaching or assessment for this module, please ask question during the lecture. If you do not receive a satisfactory response then e-mail me with your query for an appointment. Introduction: The aim of this unit is to provide learners with an understanding of aspects of the law of contract and tort and the skill to apply them, particularly in business situations. Unit abstract: The unit introduces the law of contract, with a particular emphasis on the formation and operation of business contracts. Learners are encouraged to explore the content of these agreements and then develop skills relating to the practical application of business contracts, including offer, acceptance, intention, consideration and capacity. Relevant case law examples will be covered. Learners will consider when liability in contract arises, the nature of the obligations on both sides of the contract, and the availability of remedies when a contract is not fulfilled in accordance with its terms. Additionally, the unit will enable learners to understand how the law of tort differs from the law of contract and examine issues of liability in negligence relating to business and how to avoid it. Learning outcomes |On successful completion of this unit a learner will: |Assessment criteria for pass | |LO1 Understand the essential elements of a valid contract in a |1.1 explain...
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...NEGLIGENCE Tort Law is a field that encompasses material of considerable breadth and diversity and whose existence, as a reflected in individual actions seeking civil redress for injuries nor arising out of contractual relations can be traced can be traced back to primitive societies. (White, 2003 p.23) A ‘tort’ is a Norman word for a ‘wrong’ but ‘torts’ have typically been distinguished from crimes and from ‘wrongs’ identified with contractual relations. Tort Law is concerned with civil wrongs not arising from contracts. We can see the shifting character of Tort Law in nineteenth and twentieth century America as deriving from the shifting ideas of legal scholars and judges particularly ideas about the civil responsibilities of a person to his or her neighbors in society and about the manner in which society should respond to injuries and injured people. An independent identity for Torts late in the nineteenth century is the affection of tort doctrines, especially negligence, to the problems produced by industrialization. Industrialization has played a part in creating the climate of intellectual legal opinion and it affected torts as an independent category of law. Some certain lawyer-intellectuals in the development of legal doctrine in America, who were academicians after 1870, significantly affected the content of tort rules and doctrines and also affected the changing state of tort law in America. There are many categories of Torts. It divided three...
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...general tortuous liability with reference to Prime Computers (3 d) 10 6 Explain and apply the various elements of the tort of negligence and analyse the practical applications of breach of duty and remoteness in the given situation (4 a, b) 11 7 Conclusion 15 8 Reference 16 Introduction As a legal executive in a firm of solicitors, some clients have approached and seeking advice on several claims and legal disputes, which have recently arisen to them. I am required to write a report for the following contents: 1. General tortuous liability in comparison to contractual liability. 2. Vicarious liability and health and safety issues. 3. Strict liability in comparison with general tortuous liability. 4. The various elements of the tort of negligence. Describe the nature of general tortuous liability comparing and contrasting to contractual liability (3a) A tort is a legal wrong, and the principle is the law gives various rights to person, such as right of a person in possession of land to occupy it without interference or invasion by trespassers. When such a right is infringed the wrongdoer is liable in tort. The law of tort is concerned really with a person’s responsibility to others. It applies to both individuals and companies. (Common Law, Introduction to Types of Torts, p. 231) Generally tort refers to private and civil offenses for which law may...
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...Overview of Negligence COLLAPSE Overview of Negligence We started our journey into negligence with Winterbottom v Wright (1842) 10 M &W 109. In that case the plaintiff Winterbottom was working for the Postmaster General as a driver of mail coach supplied by the Postmaster and the defendant Wright was contracted by the Postmaster to maintain the coach in a safe state. One day the plaintiff was in the coach when it collapsed and suffered injuries as result. He tried to sue the defendant in negligence but was unsuccessful. The court held that the defendant already owed a duty of care in contract, it could not also have a duty of care in tort. This case took place during the infancy of the industrialisation in the 19th century when it was in public interest to encourage innovation and technology. Similar social engineering also saw the courts in that era shield employers from actions of injured workers which would explain why the plaintiff did not sue the Postmaster. But the main reason why negligence had such a limited application was because the courts were wary of the potential of allowing unlimited actions. Heaven v Pender (1883) 11 QBD 503 took place some 40 years after Winterbottom. This is an important case because this is where Brett MR tried to establish the general principles of duty of care and expand the concept to be applied in all situations. However the court instead found for the injured plaintiff based on a duty of care owed by an occupier of land...
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...Tort Law Case I. The fireman car accident The fireman’s car was driving at a very high speed. This excess of speed was ordered by his supervisor. The car ahead, under the pressure of the fireman’s car had become agitated and by trying to make room for the fire engine, collided with a lamp post. The driver of this car had no security belt. We have to see if the fireman is liable. To be liable, three things are needed : a damage, a fact, a causation between them. According to the principle of tort law, article 1:101 of European Principle of Tort Law, (the strict liability) as soon as the victim proved that he suffers a damage, it’s needed to have compensation. Is there a damage ? Peter has collided and had to be took to the emergency. Based on article 2:102 (2) of European Principle of Tort Law, a bodily integrity enjoys the most extensive protection. If no serious hurt had been seen, we can assume that it exists a little traumatism or maybe a light physical damage and therefore this is a bodily damage. A damage exists, so the victim, Peter, doesn’t have to prove a fault, according to the strict liability principle. We need to identify the fact. By driving too fast, with the flashing lights, with the bell sounding, the fireman put a pressure on Peter who panicked and by trying to make room for the fireman, he collided with a lamp post. Are the fact and the damage in relation ? To identify the factual causes, we utilize the “but...
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...NEGIGENCE In the 1928 edition of Bevan on Negligence stated that negligence is “it has to deal……with duties as they appear when the normal standard of performance is not attained…considering defaults in conduct, and only in the second place with the adequate discharge of obligations”. 1. DUTY OF CARE Gleeson CJ and Gummow J, the approach to determine a duty of care is to identify the “salient features” that combine to constitute a sufficiently close relationship to give rise to a duty of care. Reasonably foreseeable: - It is reasonably foreseeable that any carelessness on the part of the defendant could harm the plaintiff. Did the defendant’s act impart harm “that you could reasonably foresee would be likely to injure your neighbour”? (Donoghue v Stevenson). Incremental Approach: 1. type of relationship between the parties; a) the vulnerability of the plantiff, b) degree of control of defendant, c) special knowledge of the defendant of the plaintiff’s situation. 2. the type of loss or injury (physical, psychiatric, economic) 3. policy and; 4. physical, casual and circumstantial proximity may still be used (Kirby, Modbury triangle shopping centre pty ltd v Anzil) “proximity is the best notion yet devised by the law to delineate the relationship of negibour” Proximity test involves a notion of nearness in the relationship between the parties. as a principle stated in Rylands v Flectcher, “identifying the categories of case…rather than a test for determining...
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...Contents Executive summary ii Introduction 1 01 Initial evaluation 1 1.1 Explanation of the importance of essential elements required for the formation of a valid contract 1 1.2 The impact of three methods in terms of forming and binding enforceable contract under the English Law. 2 02 Initial Business situations 4 2.1 Essential elements of a valid contract to advise Andrew 4 2.2 Law on contract terms to advise Cheltenham Champions Hotel on the claim of the guest 5 2.3 The effect of the contract terms to advise the downton hotel will be described in below 5 03 Further assessment 6 3.1 Contrast liabilities in tort with contractual liability 6 3.2 Explanation of the nature of liability in negligence 6 2.3 Explanation of how a business can be vicariously liable 7 04. Further Business Situations 8 4.1 Understanding of the elements of the tort of negligence and defenses to advise Head Office 8 4.2 Explanation of the elements of vicarious liability to the...
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...STAGE ONE: IDENTIFICATION OF THE ISSUES APPARENT I have been asked to advise my client as to his/her prospect regarding. The relevant material facts contained in the excerpt provided include……… From initial viewing of the hypothetical facts I propose that there are numerous legal issues contained: STAGE 2: IDENTIFICATION AND EXPLANATION OF THE APPLICABLE LEGAL RULES I assert that the relevant rules that apply are found in the law of torts(with specific identification to the tort of negligence, a tort that emerged as of primary importance as per the landmark decision in the House of Lords in Donoghue v Stevenson (1932) AC 562.) and statutory provisions of the Civil Liability Act 2002 (WA) which have been enacted to either clarify or modify the common law rules that determine liability for negligence. As a broadly conceived scope, the underlying principle of negligence is that a defendant may be liable in a wide range of circumstances for failure to take reasonable care which causes harm to a plaintiff’ protected interests. Now, wrongful or careless behaviour is not always actionable in negligence. The defendant will only be liable if the plaintiff can prove that three essential requirements are satisfied: Three essential requirements that must be satisfied in order to establish liability in negligence: (a) That the defendant owed the plaintiff a duty of care * Pre – existing relationship will create a duty of care. OR * “Neighbour principle”...
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...Law of tort is a civil wrong other than a claim for breach of contract; and for which a right civil action for damages may arise. Negligence is defined by Winfield and Jolowicz as “Tortious liability arises from the breach of duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”. (Roger, W.V.H., 2006) In Malaysia, the law of tort is largely derived from common law in England. In the law of tort, negligence is the most widely used tort in the legal system. In order for a claimant who is seeking for remedy to successfully bring a claim in a negligence case, they must first prove these 3 factors: * The defendant held a legal duty against the claimant. Therefore, the defendant owed the claimant a duty of care. * The defendant had breach of that duty. * The claimant are suffering damages resulted in that breach of duty. These three factors will sometimes be shortened as duty, breach and damage. Duty of care This important factor of negligence came from a famous case of Donoghue v Stevenson (1932). In this case, the claimant, Ms Donoghue went to the Minchella’s Wellmeadow Café in Paisley with her friend. Her friend ordered a bottle of ginger beer that was contained in an opaque bottle. When she poured the remained ginger beer, a decomposed snail came out with her ice cream. Ms Donoghue became ill as she has consumed the contaminated beer. She could not sue the café under the rule of...
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