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TORT by Mind Map: TORT

1. NEGLIGANCE

1.1. intro

1.1.1. A tort is a civil wrong, namely, a wrongdoing that does not attract criminal saction

1.1.1.1. Negligence is the causing of harm to another person through an act or an omission(failure to do something)

1.1.2. Sequential steps in proving negligance

1.1.2.1. Duty of care owed

1.1.2.2. Proof of causation

1.1.2.3. Breach of duty

1.1.2.4. Damage not remote

1.1.3. DUTY OF CARE

1.1.3.1. A defendant owed a plaintiff a duty of care, it means that the defendant was under an obligation to be careful towards the plaintiff

1.1.3.2. Foreseability of the Harm

1.1.3.2.1. when the defendant carried out his activities or failed to take actions

1.1.3.3. Relationship of Proximity

1.1.3.3.1. sufficient closeness between the plaintiff and the defendant.

1.1.3.4. Fair, Just and Reasonable

1.1.3.4.1. in some circumstances, the court may decide (usually for policy reasons) that it is not fair, just and reasonable to impose a duty of care on a defendant.

1.1.4. BREACH OF DUTY

1.1.4.1. Reasonable Man

1.1.4.1.1. a defendant owed the plaintiff a duty of care is only the first stage.

1.1.4.2. Objective standard

1.1.4.2.1. a standard by which we judge a defendant.

1.1.4.3. Factors in assessing breach of duty

1.1.4.3.1. whether the defendant’s action could result in serious harm

1.1.4.3.2. wwhether the harm was foreseeable

1.1.4.4. The Potential Seriousness of the Harm

1.1.4.4.1. the reasonable man is expected to consider the consequences of his actions

1.1.4.5. Foreseeability of the Harm

1.1.4.5.1. a reasonable person is not expected to guard against unknown risks

1.1.4.5.2. failure to take precaution against such risks will not constitute negligence.

1.1.4.6. The Value or Usefulness of the Defendant's Action

1.1.4.6.1. there is social value or usefulness in the defendants action,it may be appropriate to proceed with the action and run the risk of incurring injury

1.1.4.7. Practically or Cost of Taking Precaution Against the Risk

1.1.4.7.1. basically the cost-benefit analysis of the defendants safety measures

1.1.4.8. Whether the Defendant's Action was Standard Industry Practice

1.1.4.8.1. a court is more likely to consider the defendants to have acted reasonably if his conduct is consistent with the standard practice in his industry

1.1.5. CAUSATION

1.1.5.1. A plaintiff must still prove a connection or causual link between the defendant’s breach of duty and his injuries.

1.1.5.2. Intervening Acts

1.1.5.2.1. a defendant might argue that despite the breach of duty, he had not caused the plaintiff’s injury

1.1.6. REMOTENESS OF DAMAGE

1.1.6.1. a plaintiff has established a causual link between the defendants breach and the damage he suffered, he must still show that the damage is reasonably foreseeable.

2. OCCUPIERS' LIABILITY, NUISANCE & THE RULE IN RYLANDS V FLETCHER

2.1. OCCUPIERS' LIABILITY

2.1.1. A person who has control of a pace, be it a house, garage, shop, restaurant, park or even an area of pavement.

2.1.2. Who is an 'Occupier'?

2.1.2.1. not be the owner of premises

2.1.3. What is 'Premises'?

2.1.3.1. premises has a lot of meaning in this context

2.1.3.1.1. examples: land, buildings, cars,aircrafts etc

2.1.4. Type of Visitors

2.1.4.1. 4 types of visitors which is contractual entrants, invitees, licensees and trespassers

2.1.4.1.1. Contractual Entrants

2.1.4.1.2. Invitees

2.1.4.1.3. Licensees

2.1.4.1.4. Trespassers

2.1.5. Notice of Exclusion

2.1.5.1. to avoid/minimize liability, an occupier may put up warning in his premises

2.2. NUISANCE

2.2.1. a plaintiff who sues in nuisance saying that the defendant's activities annoy or cause inconvenience to him

2.2.2. Public Nuisance

2.2.2.1. committed when a defendant's act affect the reasonable comfort and convenience of life of a classs of people

2.2.3. Private Nuisance

2.2.3.1. the unlawful interference with a person's use or enjoyment of land

2.2.3.2. Pyhsical Damage

2.2.3.2.1. where the defendant’s activities have caused physical damage to the plaintiff’s property(not merely inconvenience or disturbance), the plaintiff will usually succeed in an action for provide nuisance.

2.2.3.3. Amenity Nuisance

2.2.3.3.1. where a plaintiff claims amenity nuisance (inconvenience and disturbance as opposed to physical damage)

2.2.3.4. Public Benefits of the Defendant's Activities

2.2.3.4.1. a defendant’s activities benefits the publish (e.g. where he operates a plastic recycling plant or runs a community service centre), the court is less likely to find his activities to constitute unreasonable interference giving rise to nuisance.

2.2.3.5. The Plaintiff's Sensitivity

2.2.3.5.1. the law of nuisance only protects the ordinary and reasonable use of a plaintiff's land

2.2.3.6. Malice

2.2.3.6.1. desire to cause pain, injury, loss or distress to another

2.2.3.6.2. defendant's activities are motivated by malice or ill will against the plaintiff

2.3. THE RULE IN RYLANDS V FLETCHER

2.3.1. originated from the tort of private nuisance and has since developed into a separate tort

2.3.1.1. under this rule, where a plaintiff’s land is damaged by the escape of something that is ‘non-natural’ from the defendant’s land, the defendant is liable even if he was not negligent.

3. VARIOUR LIABILITY,DEFENCES & REMEDIES

3.1. VICARIOUS LIABILITY

3.1.1. a plaintiff who sues in negligence may name the alleged tortfeasor’s employer as a co-defendant

3.1.2. Who is an Employee?

3.1.2.1. an employer is only vicariously liable for the negligence that his employee committed in the course of employment.A

3.1.2.2. The Control Test

3.1.2.2.1. an employee who has control over a worker can tell him how the work should be done.

3.1.2.2.2. it also has the power to dismiss the worker.

3.1.3. The course of Employment

3.1.3.1. an employee is doing what he is employed to do, his work is considered to be ‘in the course of employment’.

3.1.3.2. Closeness Between the Careless Act and the Employee’s Job

3.1.3.2.1. an act is considered within the course of employment if it happens during an employee’s shift.

3.1.3.3. Unauthorised Way of Doing Something Authorised

3.1.3.3.1. when an employee does his job in a improper manner,it is considered to be performing his job

3.1.4. Legislation that Affect the Principle of Vicarious Liability

3.1.4.1. The Employees’ Social Security Act 1969 and the Workmen’s Compensation Act 1952

3.1.4.1.1. the first exception is a person need not prove that his co-employee was negligent in order to be compensated. In return, he cannot claim damages against co-employee or their common employer

3.1.4.1.2. for example is Social security Organization (SOCSO)

3.1.4.1.3. the second exception is the result of the Workmen’s Compensation Act 1952. Most foreign workers engaged in manual labour (except domestic servants) come under this act. A worker who comes under this Act has 2 options 9(s41).

3.1.4.2. Section 10(1)(c) of the Civil Law Act 1956

3.1.4.2.1. an employer who becomes vicariously liable to the plaintiff due to his employee’s negligence can recover from him the sum paid to the plaintiff

3.2. DEFENCES

3.2.1. the arguments that a defendant puts forth in an attempt to avoid liability

3.2.2. Volenti Non Fit Injuria

3.2.2.1. whena defendant raises volenti non fit injuria, he is saying that the plaintiff consented or voluntarily assumed the risk of injury.

3.2.3. Contributory Negligence

3.2.3.1. where a plaintiff failed to take reasonable care of his own safety and this partly caused or worsened his injury, he is said to have been contributorily negligent.

3.3. REMEDIES

3.3.1. a plaintiff who wins a case is entitiled to remedies. damages or money compensation is what a plaintiff usually seeks.

3.3.2. Damages

3.3.2.1. a money compensation. The main purpose of damages is to restore a plaintiff to his position prior to the commission of the tort.

3.3.2.1.1. damages that serves this function is called ’compensatory damages’

3.3.3. Injunction

3.3.3.1. an order either to prohibit a defendant from continuing his act or to require him to do a certain act.