TORT (Civil wrong)

Negligence and Liability

 Meaning of Tort
• A tort is an act or omission, other than a breach of contract, which
gives rise to injury or harm to another, and amounts to a civil wrong
for which courts impose liability. In other words, a wrong has been
committed and the remedy is money damages to the person wronged.
• A tort, in common law jurisdiction, is a civil wrong that causes a
claimant to suffer loss or harm, resulting in legal liability for the person
who commits a tortious act. It can include the intentional infliction of
emotional distress, negligence, financial losses, injuries, invasion of
privacy (trespassing), defamation or slander and many other things.
 Elements of Tort
• For any civil lawsuit to be successful, there needs to be four elements of tort
law present and proven in court. 
1. A duty of care: A duty of care must always be present in any tort law claim if
it’s to be successful. For example, drivers of cars have a duty of care to drive
safely and not intoxicated or under the influence of drugs.
2. Breaching duty of care: The defendant must have failed in his or her duty. An
example may be a property owner who did not maintain his or her property,
3. An injury/damage/harm occurred: The plaintiff suffered injury in some form
i.e.  physical, mental, or emotional injury.
4. The breach of duty caused the injury or damage. The plaintiff’s injuries were
caused by the negligence of the defendant. There must be a causal link
between the breach of duty and your injury.
 Examples of Tort
• Negligence;
• Civil assault (the threat of violence);
• Battery (physical violence);
• Nuisance;
• Trespass (real property), or trespass to chattels (personal property);
• Defamation;
• Strict liability;
• Wrongful death claims;
• Intentional infliction of emotional distress.
Examples of Tort
Remedies in Tort Law
 Remedies in Tort Law
• Remedies in Tort Law are of 2 types
• Judicial Remedies: 3 ways:
• Damages
• Injunction
• Specific restitution of property
• Extra-Judicial Remedies: 5 ways:
• Expulsion of trespasser:
• Re-entry on land
• Re-caption of goods
• Abatement: In case of a nuisance
• Distress Damage Feasant
Chart of Remedies
General Defenses of Tort
 Negligence meaning
• Negligence is the most common of tort cases. At its core negligence
occurs when a tortfeasor, the person responsible for committing a
wrong, is careless and therefore responsible for the harm this
carelessness caused to another.
 Essentials of Negligence
• There are four elements of a negligence case that must be proven for
a lawsuit to be successful. All four elements must exist and be proven
by a plaintiff. The failure to prove any one of these four elements
makes a lawsuit in negligence deficient. The four elements are:
• Duty
• Breach
• Causation
• Harm
 Essentials of Negligence
• DUTY:
• The first element of negligence is duty, also referred to as duty of care. What
is a duty? In its most simplistic terms, it is an obligation to either do or not
do something that will harm someone else. Think of duty as an obligation.
We all have a duty or an obligation to act reasonably or reasonably refrain
from certain actions, in such a way as to not cause injury or harm to another
person. For example, as drivers of automobiles on public roads, we all have
a duty to follow the rules of the road. It is our obligation as a licensed driver
to do so. We understand that rules like speed limits are imposed to protect
others. A reasonable person understands that the failure to follow the rules
of the road may result in harm to another person.
 Essentials of Negligence
• BREACH:
• Once a plaintiff has established and proven that a defendant owned a
duty of care to the plaintiff, the second element of negligence a
plaintiff must prove is a breach of that duty of care. This is when a
person or company has a duty of care to another and fails to live up to
that standard of care. A plaintiff must prove that the defendant’s act
or omission caused the plaintiff to be exposed to unreasonable risk of
injury and/or harm. In other words, the defendant failed to meet their
obligation to the plaintiff and therefore put the plaintiff in harm’s way.
 Essentials of Negligence
• CAUSATION:
• The third element of negligence is causation. There are two types of
negligent causation, actual cause and proximate cause. Actual cause is
sometimes referred to as cause in fact. It means that “but for” the
negligent act or omission of the defendant, the plaintiff would not have
been harmed. This is known as the “but for” test. For example, driver A
is passing through an intersection with a green light. Driver B runs the
red light and strikes driver A’s vehicle and injures driver A. Clearly, “but
for“ the running of the red light by driver B, driver A’s vehicle would not
have been struck by driver B, and drive A would not have been harmed.
 Essentials of Negligence
• HARM/DAMAGE/INJURY:
• Harm can come in many forms. It can be economic, like medical costs and loss
wages. It can be non-economic, like pain and suffering or extreme emotional
distress. It can be harm to a person’s body, to a family member, or to property.
However, if one is not harmed in some way, the fourth element of negligence is
not met and the lawsuit in negligence will not prevail.
• The interests protected include:
• Personal harm
• Mental harm
• Harm to property
• Harm to reputation (Defamation)
• Harm to financial interests
• Harm to the due process of law
 Defenses for Negligence
• 1. CONTRIBUTORY NEGLIGENCE: It was the Common law rule that
anyone who by his own negligence contributed to the injury of which
he complains cannot maintain an action against another in respect of
it. Because, he will be considered in law to be author of his wrong.

• 2. ACT OF GOD OR VIS MAJOR: It is such a direct, violent, sudden and

irresistible act of nature as could not, by any amount of human
foresight have been foreseen or if foreseen, could not by any amount
of human care and skill, have been resisted. Such as, storm,
extraordinary fall of rain, extraordinary high tide, earth quake etc.
 Defenses for Negligence
• 3. INEVITABLE ACCIDENT: Inevitable accident also works as a defense
of negligence. An inevitable accident is that which could not possibly,
be prevented by the exercise of ordinary care, caution and skill. it
means accident physically unavoidable.

· In Brown v. Kendal, (1859) 6 Cussing 292; the plaintiff’s and

defendant’s dogs were fighting, while the defendant was trying to
separate them, he accidentally hit the plaintiff in his eye who was
standing nearby. The injury to the plaintiff was held to be result of
inevitable accident and the defendant was not liable.
 Definition of Liability
• The fact that someone is legally responsible for something.
• The responsibility of a person, business, or organization to pay or give
up something of value.
 Principles and Types of Liability
• 1) Damnum Sine Injuria
• Damnum sine injuria is a Latin legal maxim which basically means damage
without injury. It means an actual loss which occurs without the
infringement of any legal rights.
• This is because the mere loss of money or money’s worth does not
amount to any tort. In order to constitute some tort, real violation of
some rights must take place in the form of legal damage.
• No liability can arise in such cases. For example, let’s say a person has
been owning a stationery shop on a street for several years. If his business
rival opens a bigger stationery shop nearby, this person cannot sue him
for his diminishing profits. This is because no legal injury occurs to him.
 Principles and Types of Liability
• 2) Injuria Sine Damno
• In contrast with damnum sine injuria, the principle of injuria sine
damno means an infringement of rights without actual losses. Since
this leads to infringement of rights, liability can arise even if no person
suffers actual or substantial losses.
• For example, trespassing of property is a serious violation of a
person’s right to protect his property. In such cases, the trespasser is
liable to pay compensation even if he causes no real damage.
 Principles and Types of Liability
• 3) Principle of Vicarious Liability
• The general rule of tort liability is that the person who causes damage
must pay compensation. In certain cases, however, liability can arise
on third parties also. The law refers to this vicarious liability.
• In order for vicarious liability to arise, there should be some legal
relationship between the defendant and the third party. In
other words, the law must be able to attribute and extend liability to
the third party.
 Examples of relationship where vicarious
liability may arise
• A. Master and Servant
• In this case, the general rule is that the master is liable for all sorts of acts
that are authorized by him. Also, it is included that the acts are done by the
servant at the time of his/her employment.
• B. Principal and Agent
• Principal, in this case, is a person who authorizes someone to act on his/her
behalf. While the other who is advised to act accordingly is called as the
agent. It is always stated that the principal is stated liable for any act by his
agent. It is important that the act is authorized by the principal for him to be
held liable. The authority that principal acts can be in the form of
implication or expressed.
 Principles and Types of Liability
• 4) Volenti Non-Fit Injuria
• Sometimes it may so happen that a person may suffer damages when
he consents to some act. This consent may be in the form of
knowledge of the possibility of damage and free will to undergo it. A
person who understands the risks he may incur while doing
something and still does it cannot seek compensation.
• For example, imagine that a spectator suffered injuries after
a cricket ball hit him on his head. The spectator cannot claim
compensation from the batsman or any organizer in this case. This is
because the law presumes that he was aware of these risks and still
went to watch the match.
 Principles and Types of Liability
• 5) Strict Liability
• The rule of a strict liability says that if a business’s commercial
activities harm somebody, it should compensate him. This liability will
arise even if it took all necessary precautions to prevent the damage.
• For example, in Rylands v. Fletcher, water from a person’s mill
entered and damaged his neighbour’s mines. The court levied liability
on the defendant even though it was his contractor who was at fault
and not him.