Law of Tort and Employment Law

KDU
Session 10
 Law of Tort
• Law of Delict (Roman Dutch Law)

• Law of Tort (English Law)

• Generally put.........
“all civil law suits
except contractual disputes
fall into the category of torts”
 Law of Tort
• What is law of tort?
– “the body of law which allows
an injured person to
obtain compensation
from the person
who caused the injury”

• “breach of duty imposed by the law”

 Law of Tort
• Distinguished from law of contract
– Contract – obligations created by parties
– Tort – obligations created by law

• Distinguished from criminal law

– Tort is a civil wrong
– Crime is a public wrong
 Negligence
• What is ‘Negligence’?
• Unintentional wrongdoing

• Negligence is where a person deviates from his or

her conduct ordinarily expected from him/her.

• When he/she does not use common sense….

• And leaves other people and property in peril

 Negligence
• Definition….
“the failure to exercise towards another,
in given circumstances,
that degree of care
which the law considers
that a reasonable man should
exercise in those circumstances”
(Macintosh & Norman- Scoble, 1998)
 Negligence
• How to find negligence?

• How do courts decide that a person’s act amounts to negligence?

• Are all acts which cause damage to persons/property amount to

negligence?

• The legal answer…..did the defendant owe the plaintiff a duty of

care under the circumstances?
 Negligence
• What to prove?
– Duty of Care
– Breach of duty of care
– Causation (proximity)
– Reasonably foreseeable damage was caused by the

breach of duty.
 Duty of Care
• Duty is generally explained as the responsibility to
behave with a reasonable level of care…

• Existence of duty of care is determined legally

within the general parameters of
‘proximity and foreseeability’
Donoghue vs. Stevenson
(1932 AC 562)
 Donoghue vs. Stevenson
(1932 AC 562)
• Mrs. Donoghue and a friend found a decomposed snail in a ginger
beer bottle

• Mrs. Donoghue was shocked and treated for infectious diarrhea

• Held – Manufacturer was liable as the manufacturer had a duty of

care towards the consumer
 Duty of Care
• “…You must take reasonable care
to avoid acts or omissions
which you can reasonably foresee would likely to injure
your neighbor.
Who then in law is my neighbor?…persons who are so
closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or
omissions which are called into question.”
 Breach of Duty of Care

• A breach of duty occurs when one person has a duty of care

toward another person, but fails to live up to that standard. A

person may be liable for negligence in a personal injury case

if his breach of duty caused another person’s injuries.

 Few Types of Tortious Liability
• Nervous shock

– means the occurrence of a psychiatric illness or injury

caused to an individual person by events which have
occurred due to the negligence of another person.

• McLoughlin v O'Brian [1982] 2 All ER 298

• Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C.

310
 Few Types of Tortious Liability
• Occupier’s liability -

• Licensees – persons allowed to the premises (ex.- guest)

• Invitees – persons present on express or implied invitation

(ex. – customer)

• Trespassers – not allowed/permitted

 Few Types of Tortious Liability
• Nuisance
– Public nuisance
an act that is illegal because it interferes with the rights
of the public generally.

– Private nuisance
an unlawful interference with the use and enjoyment of
land.
 Few Types of Tortious Liability
• Defamation
– Libel
a published false statement that is damaging to a person's
reputation; a written defamation.

– Slander
the action or crime of making a false spoken statement damaging
to a person's reputation.
 Defences
• Consent (voluntary assumption of risk)
• Plaintiff is the wrongdoer
• Act of God
• Necessity
• Act in relation to private defence
• Contributory negligence
 Strict Liability
• Strict liability is the imposition of liability on a party without a
finding of fault (such as negligence or tortious intent). The
claimant need only prove that the tort occurred and that the
defendant was responsible.

• No need to prove intention

 Employment Law
• Employment law is the law that governs the
relationship between employer and employee.

• Vast area

• From appointment to dismissal and everything in

between
 Types of Employment
• Full time and Part time
• Causal
• Fixed term and Contract based
• Probationary
• Apprentice and Trainee
• Seasonal
 Contract of Employment
• Agreement between employer and employee

• Oral or written

• Carry terms and conditions

 Contract of Service and Contract for
Service
• Contract of service - is an agreement between an employer
and an employee

• Contract for service - an independent contractor, such as a

self-employed person or vendor, is engaged for a fee to carry
out an assignment or project. Includes terms of employment
such as working hours, leave benefits, etc.
 Independent Contractor

• An individual is an independent contractor if the payer has

the right to control or direct only the result of the work and
not what will be done and how it will be done

• Doctors, engineers, accountants etc. (professionals)

 Vicarious Liability
• General Rule - a person is liable only for the wrongful conduct of
himself

• Vicarious liability – holds a person legally liable for wrongful

conduct of another although he himself is legally blameless

Or,

• Master is liable for the wrong committed by his servants/

employer is liable for the wrong committed by his employee
 Vicarious Liability
• When can the employer be held liable? Depends on each case

• Acts carried in the course of employment

• When the act of the employee authorised by the employer or not?

 Vicarious Liability of Vehicle Owners
• Strictly adopted
• Owner is liable for any harm caused by his servant driving it
in the course of employment

• Further extended to hold him liable for the acts of anyone

driving it while he himself was in the car.