Principles of Delict
George Buchan ( Sir Hugh Jewallet Principles of Delict Delict is part of the Law of Obligations. When studying delict, we find that the law imposes an obligation on each one of us not to cause unjustifiable harm to other persons or their protected interests. The main function of this area of civil law is to define the circumstances in which an individual or a corporate body, on finding that is interests are, or have been, harmed by another's harmful act, may seek a remedy. The wrongful act is described as a civil wrong or a delict and the remedies available are either an interdict to stop the wrong recurring or compensation, sometimes called reparation Delicts or Civil Wrongs do not lead to the criminal prosecution of the wrongdoer, but to civil proceedings in the form of an action for damages against the wrongdoer in a civil court. If the action is successful , a sum of money, which is called ,damages, or compensation, or reparation, will be paid to the injured party. The distinction between crimes and delicts does not depend on the kind of wrongful act itself. The conduct will be regarded as a crime if it is not only harmful to the victim but to the public at large. Such conduct must be suppressed and discouraged by the state. Therefore, the state takes action and the wrongdoer is prosecuted by public action. If the conduct is regarded as a wrong to only the
Causation and Remoteness.
Causation and Remoteness Even in torts that are actionable per se, the claimant must prove that the tort caused the loss of which he complains if he wants to obtain substantial rather than nominal damages. Causation is concerned with the physical connection between the defendant's negligence and the claimant's damage. No matter how gross the defendant's negligence, he will not be liable if, as a question of fact, the conduct was not the cause of damage. The 'but for' test serves to exclude from consideration factors which have made no difference to the final outcome of events. Sometimes the conduct satisfies the 'but for' test, yet it is merely one of a number of events that could be rightly regarded as causing harm. Clearly, the facts must have a bearing on the decision (factual causation), but in the final analysis the court has to make a choice as to which events are to be regarded as having sufficient causative potency. This is not a scientific enquiry but a process of attributing responsibility, and this involves value judgments and policy decisions. It may be wrong however, to hold one responsible for all consequences of negligence. Sometimes, the outcome is freak or unusual and as such, it may not entirely be fair to put blame and accountability solely on the tortfeasor. Hence, the remoteness of damage that is the degree to which consequence of negligence and the
A Critical Examination of the Concept of Breach of Duty of Care
NEGLIGENCE1 Negligence is a legal concept in the common law legal systems usually used to achieve compensation for injuries (not accidents). Negligence is a type of tort or delict (also known as a civil wrong). However, the concept is sometimes used in criminal law as well. Negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from a foreseeable risk of harm. Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proved in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases. Negligence is a tort which is the breach of a duty of care imposed by common or statute law,
To succeed in a negligence action in tort, the claimant must prove three things
Samantha Freeman Tort BA Hons Legal Studies Year 2 Question 1 To succeed in a negligence action in tort, the claimant must prove the following three things: . That the defendant owed a duty of care. 2. That the defendant was in breach of that duty. 3. That the claimant suffered damage caused by the breach of duty. Lord Atkin defines duty of care, as "you must take reasonable care to avoid acts or omissions, which you can reasonably foresee would likely to injure your neighbour." To decide whether there is an existence of a duty of care, it involves applying one or more of the following: foresight, proximity and consideration of justice and reasonableness. Foreseeability means that the defendant must have foreseen some damage towards the claimant. A case that shows foreseeability and the neighbour test is Donoghue v. Stevenson [1932] A.C 562; 20 M.L.R. 1 it was held in this case, that there could be a remedy in tort as a manufacture has a duty of care to the consumer, also if it is foreseeable that the claimant may be injured then the defendant will be held liable. Proximity will vary from case to case, as it will be examined differently in each individual case. An example of a case, which shows this, is Bourhill v. Young [1943] A.C. 92 in this case the claimant was not within the area of impact so there was no proximity, so the House of Lords held the
The law of Tort.
st B.C.L. 2000/2001 Compulsory Tort Essay "..[courts of justice should not] allow themselves, in the pursuit of perfectly complete remedies for all wrongful acts, to transgress the bounds, which our law, in a wise consciousness as I conceive its limited powers, has imposed upon itself, of redressing only the proximate and direct consequences of wrongful acts." Coleridge J., Lumley v. Gye (1853) 2 E. & B. 216 at 252. Keith Ó Connachtáin Student No. 99461323 12/03/01 The tort of negligence presents an awkward dialectic. On the one hand, there is the ultimate desire to compensate each and every deserving claim presented to the courts by plaintiffs who have suffered genuine injury or damage: a truly altruistic ideal. Yet, on the other hand, this is negated by the clear need to impose limits to avoid the greatly feared scenario of "liability in an indeterminate amount for an indeterminate time to an indeterminate class".1 When two such opposing forces present themselves, one question above all becomes of prime concern: is the resulting synthesis, artificially and consciously formulated by the courts, that which most effectively and objectively combines the merits and ideals of one force with the legitimate fears and reservations of the other? The search for this elusive balance has proved difficult at best, if not almost impossible at times, as is readily visible,
Defamation Law: A Comparative Study of the US and the UK
TORTS II – Project Defamation Law: A Comparative Study of the US and the UK Submitted by: Varun Sen Bahl (ID No. : 1943) II Trimester, I Year, B.A., LL.B. (Hons) ________________ Table of Contents Table of Contents Table of Cases Indian Cases English Cases American Cases Introduction Chapter 1: Defamation: A Definition and the Elements. Chapter 2: Defamation in the US and UK: A Comparison Chapter 3: Suggestions for India Conclusion Bibliography Articles Books Essays Statutes ________________ Table of Cases Indian Cases ________________ Gandhiji Mareppa v Firm of Marwadi Vannajee, (1917) 38 I.C., 823 (Madras High Court) ________________ ________________ Hamsa v Ibrahim, (1993) 2 Ker LJ 698. (Kerala High Court) ________________ ________________ Harakh Chand v Ganga Prasad AIR 1925 All 371, (Supreme Court Of India) ________________ ________________ Krishna Behari Sen v The Corporation of Calcutta, (1904) ILR 31 Cal 993, (Calcutta High Court) ________________ ________________ MC Verghese v T.J. Poonam (1969) 1 SCC 37 (Supreme Court of India). ________________ ________________ Mitha Rustomji v Nusserwanji Nowroji AIR 1941 Bom 278 (Bombay High Court) ________________ ________________ Paras Dass son of Jugal Kishore v
Duty of Care.
DUTY OF CARE In order to establish negligence, the following had to be proved - . There was a duty owed to the claimant. 2. The duty was breached. 3. The claimant suffered damages as a result. The 'Neighbor' principle enunciated by Lord Atkins in Donoghue v Stevenson (1932) indicated to whom duty is owed and laid the principle for the modern tort of negligence. He said: 'The rule of law that you are to love your neighbor becomes in law, you must not injure your neighbor; and the lawyer's question, who is my neighbor? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be like to injure your neighbor. The answers seems to be - persons who are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question'..........'the proximity be not confined to mere physical proximity but be used as ....to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act...' Grant v Australian Knitting Mills Ltd [1936] UKPC Donoghue was ratified and furthered. It held that - * Essential question was not if the product could be examined
Various issues of Tort law (Based on a fictional case)
Various issues of Tort law (Based on a fictional case) Sam Coppock Parties in litigation can only be held liable in negligence if it can be shown that they owed a duty of care to another party who suffered an injury caused by a breach of that duty of care and that the harm was reasonably foreseeable. Even if these criteria are met there are several defences available to the defendant. I will approach the situation regarding each injury in light of this model. Caroline was a passenger in peters car. In Donohugh v Stevenson Lord Atkin stated that "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." This is the genesis of the modern law of tortuous negligence. Later in Caparo Industries Plc. Respondents v Dickman Lord Bridge of Harwich sought to clarify what this means somewhat and stated that "in addition to the foreseability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship
![Tort Law Problem Case. The Plaintiff (widow of the deceased) namely Mrs Fogg is alleging, inter alia[1] that the SimpleFlight.Com and Passepartout NHS Trust has caused the death of Mr Fogg and that the defendants are liable of negligence and trespass to t](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/946785/listing/946785_1.jpg)
Tort Law Problem Case. The Plaintiff (widow of the deceased) namely Mrs Fogg is alleging, inter alia[1] that the SimpleFlight.Com and Passepartout NHS Trust has caused the death of Mr Fogg and that the defendants are liable of negligence and trespass to t
Fogg v SimpleFlight.Com Ltd & Fogg v PAssepartout NHS Trust Judgement 5 November 2011 The Plaintiff (widow of the deceased) namely Mrs Fogg is alleging, inter alia1 that the SimpleFlight.Com and Passepartout NHS Trust has caused the death of Mr Fogg and that the defendants are liable of negligence and trespass to the person. My legitimate concern is to acknowledge the involvement of the third party namely 80 Day Tour Travel which also plays a significant role in this case. In establishing negligence I shall examine all the elements of liability2 of SimpleFlight.Com and Passepartout NHS Trust to Mr Fogg. Negligence involves duty of care3, Breach of the duty of care4, causation5, demage6 and remote7. To establish the breach of the duty of care I shall consider the factors and standard reasonableness as defined in the case of Blyth v Birmingham Waterworks (1856)8 "Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do. The standard demanded is thus not of perfection but of reasonableness. It is an objective standard taking no account of the defendant's incompetence - he may do the best he can and still be found negligent" 9 To ascertain if Mr Fogg was injured as the result of 80 Day Tour
Negligence Problem Question - a fire at Amber Valley School damages Mark's property.
Table of Contents INTRODUCTION AMBER BOROUGH COUNCIL JUSTIN AND JASON Do they owe duty of care to Mark? Do they breach the duty of care? Causation Remoteness CHIGLEY SERVICES LTD (CS) HOME OFFICE THE FIRE ENGINE REMEDIES CONCLUSION INTRODUCTION From the above statement, Mark has suffered losses such as property damage, consequential economic loss, and loss of profits. Mark may have claims in tort of negligence. Negligence operates as a means to compensate a claimant for foreseeable losses caused by a defendant’s breach of duty of care.[1] In order to win his claims, he must prove four elements on preponderance of evidence and on balance of probabilities: . The party owed Mark a duty of care 2. The party breached such duty 3. The party’s breach caused the damage which he suffered and; 4. Mark must show that the damage suffered is not too remote from the party’s negligence. I will examine whether Mark will have any successful claims towards the relevant parties based on the elements listed. AMBER BOROUGH COUNCIL Amber Borough Council (ABC) is the local education authority who owns Amber Valley Primary School; the school was set fire by a group of youths and caused damage to the neighbouring property including Mark’s shop. The issue is whether ABC owes
