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Tort

How to deal with tort of negligence?


How to establish duty of care?
How to establish breach of duty?
How to deal with damages resulting from the breach?
What can the defendant argue to avoid liability?
What if psychiatric harm is suffered?

Tort
The law of tort is that set of rules specifying certain actions and omissions as
wrongs which gives rise to civil liability
3 types of tort Tort of intentional conduct, tort of negligent conduct and tort of
strict liability
Questions asked are always pertaining to tort of negligent conduct, so forget
about the other 2

How to deal with tort of negligence?


Tort of negligence covers both acts and omissions. (pg 480)
Who owes tortious duties? Everyone. To make sure that they do not harm other
peoples rights and property.
To succeed in claim under negligence, 3 elements must be proven (Establish in
order from left to right):

Tort of Negligence

Duty of care

Breach of duty

Resulting damage

How to establish duty of care?


A duty of care is the duty imposed upon a person to take reasonable care for his
acts and omissions. To establish a duty of care, the plaintiff must establish that
the defendant was under the legal duty to perform in a particular fashion. (pg
481)
Spandeck test used in Singapore to determine existence of duty of care
Case to cite: Spandeck Engineering (S) Pte Ltd v Defence Science & Technology
Agency (2007)
1) Preliminary requirement - Is there factual foreseeability?
Would the defendant ought to have known that the plaintiff would
suffer damage from the defendants carelessness? If yes, factual
foreseeability established. If no, no duty of care.
2) First prong of Spandeck test Is there legal proximity?
The closeness and directness of the relationship between the parties
(Just establish one)
o Physical proximity in terms of space and time
o Circumstantial proximity in terms of relationship between the
parties

Causal proximity Was the loss or injury sustained a direct result


from the course of conduct?
Once established, a prima facie duty of care exists
3) Second prong of Spandeck test Is there any policy consideration
negating the prima facie duty of care? (Quite rare, unlikely to appear)
Meant to prevent floodgates and unfair claims
o Is there a contractual relationship between the parties that
regulates the rights of the parties?
o Relative bargaining positions of the parties?
o Any public policy considerations?
o

If point 1 and 2 are shown and point 3 is absent, a duty of care exists.

How to establish breach of duty?


The basic test of breach of duty of care is the omission to do something which a
reasonable man would do, or doing something which a prudent and reasonable
man would not do (pg 486)
Case to cite: Blyth v Brimingham Waterworks [1856]
The plaintiff must now demonstrate that the defendant breached the duty of care
by failing to perform up to the standard of care.
1) Can you argue Res Ipsa Loquitur? If yes, breach of duty immediately.
(Extremely unlikely to succeed in arguing)
The breach is so self-evident that the occurrence of the event proves
the breach.
Things were under control of the defendant and the accident could not,
in the ordinary course of things, have occurred without the negligence
of the defendant.
Case to cite: Scott v London & St Katherine Docks [1865]
2) What is the duty of care owed to the plaintiff?
3) What is the standard of care expected of the person who owes the duty?
The standard of care is the level of care which is expected to be
exhibited in the defendants conduct.
o Level of skill The level of skill required is that of a reasonable
man in the shoes of the defendant. If the defendants conduct
matches the level of skill expected of him, standard of care met
and duty of care not breached
o Case to cite: Wells v Cooper [1958]
o Likelihood of injury Is the likelihood of injury to the plaintiff
high? If yes, higher standard of care expected
o Case to cite: Bolton v Stone [1951]
o Seriousness of injury Is the injury serious? If yes, higher
standard of care expected
o Case to cite: Paris v Stepney Borough Council [1951]
o Cost of avoiding risk Are the steps taken to avoid the risk
equivalent to the risk of injury?
o Case to cite: Latimer v AEC Ltd [1953]
If the defendants conduct does not meet the standard of care, duty of
care breached.

How to deal with damages resulting from the


breach?
The plaintiff must now prove that he suffered damage or loss as a direct result of
the breach
1) Establish causation - Did the breach cause the loss? (pg 490)
Does it pass the but-for test? (Causation in fact)
o But for (if not for) the <breach>, the plaintiff would not have
suffered <loss>
Is there a new intervening act that limits legal responsibility?
(Causation in law)
If the but-for test is passed, and there is no new intervening act, then the
breach is said to cause the damage.
If there is a new intervening act, chain of causation is broken.
2) Establish remoteness 2 tests.
Direct Consequences test (Less preferred)
o Someone who acts negligently should be responsible for any
damage they cause so long as the damage is directly traceable
to the negligent act
o Case to cite: Re Polemis & Furness, Withy & Co [1921]
Reasonable Foreseeability test (Preferred)
o Is the type of damage reasonably foreseeable?
o Case to cite: Overseas Tankship (UK) Ltd v Morts Dock
Engineering Co. Ltd (Wagon Mound No. 1) [1961]
o Exact extent of damage not necessary
Egg-shell skull rule defendant is liable even if the
damage suffered by the plaintiff is more severe than what
could be reasonably foreseen by the defendant
Case to cite: Smith v Leech Brain & Co [1962]

What can the defendant argue to avoid liability?


3 possible defences volenti non fit injuria, contributory negligence and
disclaimers (pg 493)
1) Volunti non fit injuria (Difficult to argue successfully)
That which a man consents cannot be considered as an injury
Does the injured party know the full extent of the risks he is consenting
to?
Does the injured party voluntarily consent to all of these risks?
If volunti non fit injuria is successfully argued, it is a complete defence and the
defendant avoids all liability.
2) Contributory negligence
Was the injured partys injury partly due to his own fault? If yes,
contributory negligence.
Stature to cite: S3(1) Contributory Negligence and Personal Injuries Act
Courts will then apportion the liability between the parties.

Damages claimable is based on determined proportion


If contributory negligence is successfully argued, it is a partial defence and the
defendant avoids part of the liability.
3) Disclaimers
Essentially exemption clauses for tort
Is the disclaimer valid (in terms of incorporation, construction, unusual
factors and UCTA)?

What if psychiatric harm is suffered?


General rule is that damages for psychiatric harm is unrecoverable. (pg 495)
Exception:
1) Did the claimant suffer severe shock, as opposed to just mere grief or
sorrow?
Case to cite: McLoughlin v OBrian [1983]
The class of persons whose claims should be recognised the closer
the tie between the claimant and the sufferer, the greater the claim for
consideration
Proximity of such persons to the accident closeness in terms of space
and time
The means by which the shock is caused Did the shock come through
sight or hearing of the event or of its immediate aftermath?

What to deal with negligent misstatements?


Negligent misstatements revolves around negligent statements rather than
negligent actions (pg 496) (Super rare, unlikely to appear)
Deal with this exactly how you would deal with tort of negligence
1) Establish duty of care
Apply Spandeck Test
Under the dichotomies of the old law, the principles in Hedley Bryne &
Co Ltd v Heller & Partners Ltd [1964] would be used to determine duty
of care for negligent misstatements
o Do not use these principles as Spandeck is now applicable to all
types of negligent tort
2) Establish breach of duty of care
Standard of care owed is that of a reasonably competent fellow
professional in the same field
Case to cite: Lanphier v Phipos [1838]
3) Determine resulting damages
Causation
Remoteness
4) Possible defences for defendant
Disclaimers
Other torts in business involves passing off (pg 506), defamation (pg 507) and
inducing breach of contract (pg 508) (Refer to the book if it comes out)

Miscellaneous issues
Vicarious liability
Pursuant to the tort of vicarious liability, one person may be made answerable
for the actions of another. Control required for vicarious liability to occur.
1) Does the employer have any control over the employee?
Eg does the employee report to the employer?
2) Is the tort committed within the ordinary course of business?
If yes to both, firm/employer is vicariously liable for the tort of negligence
committed by employee