The Law of Tort RC Steenkamp 8 May 2018 EXTRA CLASSES THIS WEEK Wednesday 16/05/2018: ▪ 12:00 – 14:00 ▪ HS 9 (E-Building) Thursday 17/05/2018: ▪ 12:00 – 14:00 ▪ C 10 (C-Building) INTRODUCTION Balance of probabilities vs beyond a reasonable doubt? Names of the parties in civil and criminal cases? Fault: intention vs negligence? Examples of torts/delicts? DEFINITION – ‘CIVIL WRONG’ What is a tort? ▪ ‘A civil wrong independent of contract’ Two elements to this definition: ▪ A civil wrong; ▪ Independent of contract What does it mean if it is a civil wrong? ▪ Differentiate a civil wrong from a crime TORTS VS CRIMES? Torts: Crimes: 1. A wrong against an individual 1. A wrong against the State 2. Case will be started by the individual affected (the 2. Case is almost always started by the State plaintiff/claimant) 3. Defendant will be sued in civil courts – civil action will 3. Accused (‘defendant’) will be prosecuted in criminal be brought against the defendant courts – accused faces criminal charges 4. If liable, the defendant will pay damages to 4. If guilty, accused will be prosecuted/punished compensate the plaintiff 5. Main purpose? To provide the victim (person who has 5. Main purpose? To maintain law and order and protect suffered from the infringement of a right/duty) with a the public remedy to enforce their right 6. Branch of private law (civil law) 6. Branch of public law (criminal law) 7. Burden of proof rests with the claimant – standard of 7. Burden of proof rests with the prosecution – standard proof is ‘balance of probabilities’ of proof is ‘beyond a reasonable doubt’ DEFINITION – ‘INDEPENDENT OF CONTRACT’ NB!! Liability in tort law comes from either: ▪ A breach of a duty owed by members of society towards each other; or ▪ The infringement of a right of another person Therefore, tort law protects the rights and freedoms of individuals (either their property or their reputation). Where does liability in contract law come from? ▪ So what does it mean if tort law is independent of contract? DEFINITION – ‘INDEPENDENT OF CONTRACT’ Like a tort, breach of contract is a civil wrong However, liability in contract law requires a pre- existing contractual relationship while no such connection is necessary in a tort case DEFINITION -OVERLAP Concurrent liability? ▪ Overlap between law of tort and contract law? ▪ Overlap between law of tort and criminal law? FUNDAMENTAL PRINCIPLES OF TORTIOUS LIABILITY Prima Facie, there needs to be a wrongful act by the defendant which causes damage or loss to the claimant 3 fundamental principles that need to be considered: 1. Causation; 2. Remoteness; 3. Contributory Negligence 1 CAUSATION Claimant must prove a causal link Causation is a fundamental ingredient for tortious liability ▪ Barnett v Chelsea & Kensington Hospital Committee introduced the ‘but-for’ test ▪ Facts of the Case? ▪ Possible problems with the ‘but-for’ test? 1 CAUSATION Problems with the ‘but-for’ test? ▪ ‘A purist might say that the crystal clear water in the well of principle has been polluted by the beguiling influence of public policy’ McGhee v National Coal Board ▪ ‘as a matter of policy or justice… it is the creator of the risk who… must be taken to have foreseen the possibility of damage, who should bear its consequences’ Public policy and causation? 2 REMOTENESS One action has the potential to set into motion an unlimited amount of consequences Therefore, a defendant’s liability must be limited in time in space – consequences of the original act must not be too remote Novus actus interveniens? 3 CONTRIBUTORY NEGLIGENCE Even where a defendant’s actions are established as being the cause of the damage/injury, this may not be the only cause ‘Defence’ for the defendant – can be used to indicate that the damage/injuries would have been less severe Law Reform (Contributory Negligence) Act of 1945 ▪ Froom v Butcher THE MAIN TYPES OF TORTS Following torts are of relevance for the present lecture: 1. Defamation 2. Nuisance 3. Trespass 4. Negligence 1 DEFAMATION The publishing of untrue statements that reflect negatively on another’s reputation Requirements for defamation? ▪ Statement must be defamatory; ▪ Statement must refer to the claimant ❖ Eastwood v Holmes ▪ Statement must be published/communicated to a third party Libel vs slander? 2 NUISANCE Private vs public nuisance? Private nuisance ▪ Unreasonable interference with reasonable enjoyment of land ▪ Private nuisance could (1) cause physical damage to the land or (2) disturb the claimant’s enjoyment of the land 2 NUISANCE Public nuisance ▪ An act or omission that materially affects the reasonable comfort and convenience of a particular group or society in general Not limited to interference with land Usually a crime and not a tort 3 TRESPASS Differentiate between THREE types of trespass: 1. Trespass to goods; 2. Trespass to land; and 3. Trespass to the person Trespass of goods involves the intentional and forceful interference with goods which are possessed by another Trespass to land is the unjustifiable interference with the possession of land 3 TRESPASS Trespass to person involves three sub- categories: 1. Assault; 2. Battery; and 3. False imprisonment All three of these torts are also crimes.