RC Steenkamp

8 May 2018

The Law of Tort

EXTRA CLASSES THIS WEEK

Wednesday 16/05/2018:

▪ 12:00 – 14:00

▪ HS 9 (E-Building)

Thursday 17/05/2018:

▪ 12:00 – 14:00

▪ C 10 (C-Building)

INTRODUCTION

Balance of probabilities vs beyond a reasonable doubt?

Names of the parties in civil and criminal cases?

Fault: intention vs negligence?

Examples of torts/delicts?

DEFINITION – ‘CIVIL WRONG’

What is a tort?

▪ ‘A civil wrong independent of contract’

Two elements to this definition:

▪ A civil wrong;

▪ Independent of contract

What does it mean if it is a civil wrong?

▪ Differentiate a civil wrong from a crime

TORTS VS CRIMES?

Torts: Crimes:

1. A wrong against an individual 1. A wrong against the State

2. Case will be started by the individual affected (the

plaintiff/claimant)2. Case is almost always started by the State

3. Defendant will be sued in civil courts – civil action will

be brought against the defendant

3. Accused (‘defendant’) will be prosecuted in criminal

courts – accused faces criminal charges

4. If liable, the defendant will pay damages to

compensate the plaintiff4. If guilty, accused will be prosecuted/punished

5. Main purpose? To provide the victim (person who has

suffered from the infringement of a right/duty) with a

remedy to enforce their right

5. Main purpose? To maintain law and order and protect

the public

6. Branch of private law (civil law) 6. Branch of public law (criminal law)

7. Burden of proof rests with the claimant – standard of

proof is ‘balance of probabilities’

7. Burden of proof rests with the prosecution – standard

of proof is ‘beyond a reasonable doubt’

DEFINITION – ‘INDEPENDENT OF

CONTRACT’

NB!! Liability in tort law comes from either:

▪ A breach of a duty owed by members of society towards each other; or

▪ The infringement of a right of another person

Therefore, tort law protects the rights and freedoms of individuals (either their property or their reputation).

Where does liability in contract law come from?

▪ So what does it mean if tort law is independent of contract?

Like a tort, breach of contract is a civil wrong

However, liability in contract law requires a pre-

existing contractual relationship while no such

connection is necessary in a tort case

DEFINITION – ‘INDEPENDENT OF

CONTRACT’

DEFINITION -OVERLAP

Concurrent liability?

▪ Overlap between law of tort and contract law?

▪ Overlap between law of tort and criminal law?

FUNDAMENTAL PRINCIPLES OF

TORTIOUS LIABILITY

Prima Facie, there needs to be a wrongful act by the defendant which causes

damage or loss to the claimant

3 fundamental principles that need to be considered:

1. Causation;

2. Remoteness;

3. Contributory Negligence

CAUSATION

Claimant must prove a causal link

Causation is a fundamental ingredient for

tortious liability

▪ Barnett v Chelsea & Kensington Hospital Committee

introduced the ‘but-for’ test

▪ Facts of the Case?

▪ Possible problems with the ‘but-for’ test?

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CAUSATION

Problems with the ‘but-for’ test?

▪ ‘A purist might say that the crystal clear water in the well of principle has been

polluted by the beguiling influence of public policy’

McGhee v National Coal Board

▪ ‘as a matter of policy or justice… it is the creator of the risk who… must be

taken to have foreseen the possibility of damage, who should bear its

consequences’

Public policy and causation?

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REMOTENESS

One action has the potential to set into motion an unlimited amount of

consequences

Therefore, a defendant’s liability must be limited in time in space – consequences

of the original act must not be too remote

Novus actus interveniens?

2

CONTRIBUTORY

NEGLIGENCE Even where a defendant’s actions are established as being

the cause of the damage/injury, this may not be the only

cause

‘Defence’ for the defendant – can be used to indicate that

the damage/injuries would have been less severe

Law Reform (Contributory Negligence) Act of 1945

▪ Froom v Butcher

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THE MAIN TYPES OF TORTS

Following torts are of relevance for the present lecture:

1. Defamation

2. Nuisance

3. Trespass

4. Negligence

DEFAMATION

The publishing of untrue statements that reflect negatively on another’s reputation

Requirements for defamation?

▪ Statement must be defamatory;

▪ Statement must refer to the claimant

❖ Eastwood v Holmes

▪ Statement must be published/communicated to a third party

Libel vs slander?

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NUISANCE

Private vs public nuisance?

Private nuisance

▪ Unreasonable interference with reasonable

enjoyment of land

▪ Private nuisance could (1) cause

physical damage to the land or

(2) disturb the claimant’s

enjoyment of the land

2

NUISANCE

Public nuisance

▪ An act or omission that materially affects

the reasonable comfort and convenience

of a particular group or society in general

Not limited to interference with land

Usually a crime and not a tort

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TRESPASS

Differentiate between THREE types of trespass:

1. Trespass to goods;

2. Trespass to land; and

3. Trespass to the person

Trespass of goods involves the intentional and forceful interference with goods which are possessed by another

Trespass to land is the unjustifiable interference with the possession of land

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TRESPASS

Trespass to person involves three sub-

categories:

1. Assault;

2. Battery; and

3. False imprisonment

All three of these torts are also crimes

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