Tort - Negligence

Part 3 - Tort
Introduction
Tort is a civil wrong actionable for damages
Classified into Intentional Tort, Strict Liability or Negligent Tort

Intentional Tort
Tort done intentionally
Trespass to person
Trespass to goods
Trespass to property

NEGLIGENCE

Is a Tort
Need to prove 3 elements:-
Duty of Care
Breach of Duty
Causation

Duty of care
Is determined primarily by the “Neighborhood test”
Case : Donoghue v Stevenson (1932)
Some special cases:
Negligent statements
Nervous shock

Negligent Statements
Need for special relationship
Reasonable reliance – factors
-Paid advice
-Business of giving advice
-Disclaimer
Cases :
Hedley Byrne v Heller & Partners
Esso Petroleum v Marden
Caparo Industries v Dickman

Nervous Shock
Must be a recognizable psychiatric illness
Conditions for claim:-
Witnessed the accident or immediate aftermath
Own unaided senses
Close relationship
Cases:
McLoughlin v Obrien
Alcock v CC South Yorkshire

Breach of Duty
Reasonableness
Level of Skill (Wells v Copper)
Likelihood (Bolton v Stone)
Seriousness (Paris v Stepney BC)
Cost (Latimer v AEC)
Res Ipsa Loquitor

Causation
In Fact – “But For Test”
Barnet v Chelsea & Kensington Hospital
In Law – “Remoteness”
The Wagon Mound

Damages in Tort
Special Damages
Medical Expenses
Personal Belongings
Loss of Income

General Damages
Pain
Future Loss
Loss of Amenities
Future Medical


Conclusion - Negligence
You need to understand the elements required for the tort to be established
You need to analyze the element of fault

Remedies in Contract

Remedies
In this part we try and understand the various remedies that the aggrieved party to a contract can seek from the courts

Remedies in Contract
Damages
Injunction
Specific Performance

Damages
Monetary compensation
Compensatory Principle
Restitio in Integrum – put parties in the position had the contract not been breached
Johnson v Agnew (1979)
Requires proof of causation
Remoteness
Mitigation
Assessment

Causation
Question of fact
Whether the breach caused the damage

Remoteness
Test in Hadley v Baxendale (1854)
Normal Loss (usual course)
Abnormal loss (contemplated)

Mitigation
Duty to minimise the loss
Duty is to take reasonable steps
British Westinghouse v London Underground Electric Railway(1912)

Assessment
Liquidated claims
Unliquidated claims
Loss of enjoyment (Jarvis v Swan Tours)
Penalty clauses

Specific Performance
Equitable remedy
Discretionary
Not given if damages is adequate

Injunction
Equitable remedy
Prevents an action
Interlocutory
Permanent

Conclusion - Remedies
In this part you would have to understand the consequences of the breach – what parties are entitled to upon a breach and how these remedies can be awarded

Discharge

Discharge of Contract
In this part of the lecture we determine when the obligations created in the contract ends

Discharge of Contract
Obligation arises upon formation
The obligation is discharged upon the occurrence of a factor

Performance
Obligation is discharged upon performance of the obligation
By performance we mean precise performance (Cutter v Powell)

Exception to precise performance
De minimis Rule
Prevented Performance
Divisible Contract
Acceptance of partial performance
Substantial Performance

Breach
Where a party fails to perform his obligations, his primary obligation is discharged
There are 2 categories of breaches – actual or anticipatory

Agreement
Existing
Subsequent

Frustration
Discharges parties obligations immediately
Need to prove :-
Supervening event
No fault of parties
Radical Change in Circumstances
Davis Contractors v Fareham UDC (1956)

Radical Change
Destruction of subject matter
Non occurrence of event
Government interference
Personal Incapacity

Effect of Frustration
Common Law position – Fibrosa Spolka (1943)
Frustrated Contract Act

Conclusion
Obligation in a contract (primary) continues until discharged
Secondary obligations may arise as a result of breach ie. pay damages