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What is a Tort代寫


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The IRAC Method


Arthur comes into Harry’s antique shop and offers to buy an antique desk for $5000. Harry says ‘Absolutely!’ Arthur pays for the desk with $5000 in cash.
Has a contract been formed?


TORTS
OBJECTIVES


Define “tort”
Overview of the Law of Torts
Discuss the elements of the tort of negligence
Look at defences in negligence
Explain vicarious liability
What is a Tort?
A ‘civil’ (rather than ‘criminal’) wrong
“tort” from Latin “tortus” meaning twisted or crooked

A tort occurs when there is either:
wrongdoing by one person to another; or
a breach of a duty imposed by law

The injured person may sue for compensation (damages)
The law of torts protects a persons interest in their:

Bodily security
  Assault,   battery,   negligence
Financial position
  negligent   misstatement
Reputation
  defamation
More examples of torts

Interference with property rights
Trespass
Nuisance
Commercial interests
Passing Off
Slander of Goods
Conspiracy
Interference with Contractual Relations
Features of Torts

Fault – intentional wrongful act or acting careless of the consequences
Damage/injury/loss
Remedy
Compensation ($) i.e. “damages”
Injunction
Defences
Concept of vicarious liability
Civil Trials

BURDEN OF PROOF:
Plaintiff ( “he who asserts must prove.”)

STANDARD OF PROOF:
“On the balance of probabilities”
(compare criminal cases – ‘beyond a reasonable doubt’)
The Tort of Negligence



Negligence consists of a legal duty to take care and breach of that duty by the defendant causing damage to the plaintiff; Lochgelly Iron Co. v. M’Mullan [1934] AC 1 at 25 per Lord Wright


ESTABLISHING NEGLIGENCE
Plaintiff must prove EACH element of negligence in order to succeed in the action.
First element – a duty of care
Plaintiff must show that the defendant owed him/her a duty of care

The Foundation Stone:
 Donoghue v Stevenson [1932] AC 562
TO WHOM DO YOU OWE A DUTY OF CARE? 

  To all persons who are so closely and directly affected by your actions that you ought reasonably to have had them in mind as likely to be so affected when you were turning your mind to the conduct (act or omission) that is called into question


So there are two aspects to Lord Atkin’s principle

A duty of care is owed when:
(1) There  is a reasonably foreseeable risk that what a person is doing might (in the sense that the risk is ‘not far fetched or fanciful’) cause injury to another person; and
(2) There is a relationship of neighbourhood or proximity between the two persons
The modern test for ‘duty of care’

  Firstly, it must have been foreseeable to a ‘reasonable person’ in the position of the defendant that injury or harm of some kind would happen or be caused to someone of as a result of the kind conduct engaged in by the defendant.
Secondly, the plaintiff must be a person, or a member of a class of persons, who was or were in a such a ‘close and direct’ relationship with the defendant that the defendant ought to have ‘had the plaintiff in contemplation’ and thus ought reasonably to have been able to foresee that he/she/they might suffer harm as a result of the defendant’s conduct if the defendant did not take reasonable care to prevent this from happening.
Thirdly, either the judges in earlier cases must previously have recognised that  a 'duty relationship’ will usually exist between persons in the position of the plaintiff and defendant or, in the more unusual types of case, where no previously recognised ‘duty relationship’ is present, it must be appropriate, as a matter of law, for the court to decide to impose one. (See: Sullivan v Moody next slide)

To Sum Up
Second element: Breach of the duty of care
If a duty of care is found to exist than the plaintiff must then be able to prove that the defendant breached that duty of care.
Standard of care

The duty of care will only be held to have been breached when it is clear that the defendant failed to take as much care as was legally required. Thus, before it can be established that the defendant has breached its duty of care, it is necessary to establish what ‘standard of care’ the law would require a person in the defendant’s position to take.
THE REASONABLE PERSON
The law requires that a defendant must take as much care as a ‘reasonable person’ would have taken in similar circumstances, bearing in mind various factors. This is known as “the reasonable person” standard.


Must Consider: ‘the likely seriousness of consequences’

Obviously, the more serious the injury likely to be caused, the more care a reasonable person would take


Also must consider:
Likelihood of injury
Difficulty and cost of taking precautions
Established standards etc


Third element Damage
Plaintiff must also prove:
 He/she suffered damage (loss or injury) of some kind 
 Could be physical injury, loss of property, loss of money
Two aspects to consider here:
Causation
Foreseeability
Causation

Foreseeability
  Defendant is only responsible for damage that is of a reasonably foreseeable type – any other type of loss or damage, even if it is in fact caused by the defendants conduct, is regarded as damage that is ‘too remote’ (because it is so unlikely to happen) and thus is not recoverable at law
  See: the two Wagon Mound cases
Wagon Mound” No1 [1961]
Wagon Mound” No2 [1967]
Foreseeability of damage
  In this context ‘damage’ is only to be regarded as reasonably foreseeable if the risk of it occurring is real or very likely
  [the ‘not far-fetched or fanciful’ test that applies in the duty of care inquiry is, in this context, too ‘undemanding’ to be the right test]


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