Law Unit 2

Semester 1
HANDOUT # 1

DEFINITION OF TORT LAW

 A tort may be defined broadly as a civil wrong involving a breach of duty fixed by the
law.
 This duty is owed to persons generally and a breach of this duty may give rise to a claim
for damages.
 The aim of tort is to compensate persons harmed by the wrongful conduct of others
 Damage sustained in tort may take any of several forms (physical injury, physical
damage to property, injury to reputation, damage to economic interest.
 Monetary damages is the usual remedy for tort
 There are three types of tort
 Negligent torts
 Intentional torts
 Strict liability torts.

TORT VS CONSTITUTIONAL LAW

Written into our Constitution is guaranteed protection to everyone in Grenada to protection of

their fundamental rights and freedoms, these include:

Life, Liberty, Security, protection of the law, freedom of conscience expression assembly and
association, no slavery or forced labour, protection from inhuman or degrading treatment,
protection from deprivation of property, protection from arbitrary search or entry, protection
from discrimination.

 While the Constitution protects these fundamental rights and freedoms, it also makes
provisions for circumstances wherein the State can take certain action which can result
in the deprivation of these aforementioned freedoms or rights, particularly if it is for the
protection of the rights and freedoms of others and for the public interest generally.
 A violation of any these rights outside of the excepted circumstances may give rise to a
claim in Tort law, Criminal law or a Constitutional motion, the avenue to pursue redress
will depend on the, WHAT, WHO, and HOW.
Our constitution makes provision for the protection of our fundamental rights and freedoms.

WHAT

 What was the violation, was it a right or freedom guaranteed protection by the
Constitution?

WHO

 Who violated the right/freedom, was it a private individual or group or a State actor?

HOW

 If this violation was by State actor/s, was the person or persons acting in their private
capacity or by and under the authority of the State

 In Tort law, compensation for damages and loss suffered is ALWAYS featured and a
necessary component of the claim. As long as the plaintiff can substantiate and prove
their claim damages will be awarded.

 In Constitutional Law the redress may be in the form of a declaration, that certain
action by the State or its actors was unconstitutional. The Constitution does provide for
compensation in some instances but the extent and nature of the compensation is
subject to judicial interpretation and may be more limited than that allowed under Tort
law. The Court may also determine that there is a more appropriate alternative course
of remedy which should be pursued (e.g. Criminal or Tort law).

TORT VS CRIMINAL LAW

 Criminal law protects the interest of the public at large.

 Persons found guilty of criminal conduct are punished by imprisonment or fine
 Criminal law focuses on deterrence, Tort law focuses on compensation
 Some behavior or conduct can be considered both Criminal and Tortious
  A defendant in criminal proceedings has certain fundamental rights and freedoms
guaranteed by the Constitution, this defendant is not obligated to say anything during
their trial, the onus is on the prosecution to prove their case against the defendant.
 A defendant to a claim in tort must respond to the claim within a certain period failing
which the claimant can obtain judgment in default
 The standard of proof required in criminal cases is beyond a reasonable doubt, in cases
it is on a balance of probabilities.

TORT vs CONTRACT LAW

 In Tort, duties of the parties are fixed by law, in contract they are fixed by the parties
themselves
 Note however in Contract there are underlying duties imposed by law that are not
expressly agreed upon and similarly in Tort some duties can be varied by agreement (a
person can sign an agreement releasing another from liability)
 In tort, award of damages designed to protect the status quo, plaintiff to be returned to
position they would have been in if tort was not committed
 In contract damages aimed at putting the claimant in the position they would have been
in if the contract was fulfilled.
 Scenario 1

Robert is arrested and detained by the police. During his arrest and detention he is severely beaten by
the police, they claim he resisted arrest and they used reasonable force. Robert suffers severe injuries to
his head and body including a fractured skull. Robert is currently in the hospital in a coma and his family
is desperately in need of legal advice.

Scenario 2

Nikita is arrested for possession of marijuana. On every court appearance the prosecutor state they are
unable to proceed because they have not yet tested the substance. The case continues to be adjourned.
After spending three (3) years in Richmond Hill the case finally proceeds to trial. Nikita is convicted and
sentenced to time served. Her neighbor tells her she should see a lawyer because they not supposed to
keep her in jail so long and her constitutional rights were violated and she could make a claim against
the government and receive compensation and damages.

Scenario 3

Stephen and Lisa are classmates and get into a squabble in school over some headphones. Stephen
grabs the headphones from Lisa thereby bruising her arm and bursting her watch band. They are both
sent to the principal office. Lisa’s parents call you for your advice on the matter. Should they call the
police? Are they entitled to some form of compensation?

Scenario 4

Stella, an 89-year-old woman is crossing the street on the Carenage area. Paul’s car is cruising along at a
moderate speed, however he looks away for only a few seconds to pick up his ringing cell phone and the
car hits Stella. Stella is taken to the hospital and suffers significant injuries to her spine and hip. Doctors
state she will never walk again. Stella’s grandchildren call you for advice and representation.
 Scenario 5

Hazel and Lucy agree to have a wrestling match on the tanteen playing field. They sign a contractual
agreement which stipulates the prize money and general rules for the match, the agreement states that
blows on any part of the body are ok except above the neck. During the match, Hazel lands a hard blow
in Lucy’s eyes. Lucy’s eyes become black and blue and she has to be rushed to the hospital. Lucy’s
mother contacts you for your advice and representation

Scenario 6

David signs an agreement with the Richmond Hill Commissioner of Prisons as part of a study for
him to spend 3 nights at Richmond Hill to observe inmate behaviour. The prison officers were
not to be made aware that he is not in fact a prisoner. While there David refused to go into his
cell at a certain time, insisting he wanted to remain in the courtyard. A prison officer grabbed
him by his shirt and forcibly dragged him into his cell and locked the door. David is upset and
complains to the Commissioner, he immediately terminates his agreement and comes to you for
advice and representation.
Handout # 2

Negligence: Key Concepts

Elements (plaintiff must prove each element on a balance of probabilities):

 Duty
 Breach of Duty
 Causation (two parts)
 Damages

Definitions:

 Duty – A legal obligation owed to another. Generally, you owe a duty of care to those
around you (i.e. a duty to act reasonably)
 The Reasonable Person – A fictitious person of ordinary prudence that the law uses to
determine what the duty of care is in a given situation
o In a given situation, the Reasonable Person considers:
 How likely a certain harm is to occur
 How serious the harm would be if it did occur
 The burden involved in avoiding the harm
 Breach of Duty – The failure to meet the standard of care dictated by the objective,
reasonable person test
 Causation
o Cause in fact – The cause without which the event could not have occurred
(remember the “but for” test)
o Proximate cause (i.e. legal cause) – A cause that the law considers to result in a
consequence, so that liability can be imposed on the actor (remember the
foreseeability test)
 Proximate cause often comes down to a policy determination on how far
liability should extend in a certain situation
 Damages – Plaintiff must show actual, physical harm before he or she can collect money
from the defendant.
Duty: The defendant owed the plaintiff a duty to act reasonably. A reasonable person would
consider (1) the burden of taking precautions; (2) the likelihood of harm; and (3) the seriousness
of the harm.

Breach: The defendant’s conduct violated that duty (the defendant did not act reasonably).

Causation: The harm would not have occurred without the defendant’s actions.

Damages: The plaintiff suffered actual damages (medical costs, lost wages, pain and suffering,
etc.).

Good case for moot

http://www.eccourts.org/judgments/decisions/2012/HC/antigua/AudreyBarrattvHawksbillLtd.pdf#searc
h="negligence"

http://www.eccourts.org/judgments/decisions/2011/JaninCaribbeanConstructionvWilkinson.pdf#search
="donoghue v Stevenson”