Overview “Tort” is an archaic (Norman-French derived) word for a wrong. The law of torts relates to private claims between individuals or corporates for compensation caused by wrongdoing. In contrast to a claim based on a contract, it does not derive from a voluntary agreement. In contrast to claims based on restitution, it is not designed to prevent unjust enrichment. […]
Negligence The tort of negligence is of great practical importance. It expresses duties and rights in a very open and general way. Liability for negligence may arise when the defendant owes a duty of care to the claimant. In its broadest sense, a duty of care is potentially owed to anyone who may suffer foreseeable injury or loss as a […]
Minors The principles applicable to negligence and contributory negligence on the part of children are broadly the same as those which apply to persons of full age. There have been few reported cases where negligence on the part of children has been a central issue. Children are potentially liable for their civil wrongs from a very young age. Cases have […]
Historical Immunity of the State At common law, the King / Crown represented the State and was immune from private civil claims. It was a principle that the King could do no wrong and was immune from suit in the courts, which were constituted is his name. It was assumed that the State succeeded to the immunity of the Crown, […]
Causation In civil wrong/ tort claims, the claimant must show that the defendant’s actions have caused him loss and damage in order to recover damages. Even if the defendant can be shown to have caused the loss, the consequences of the defendant’s actions must not be too “remote” to be the subject of compensation. Some consequences of the same action […]
Survival of Actions At common law, most personal civil claims by or against the deceased ceased on his or her death. This position was reformed by statute in many types of cases. Ultimately, the Civil Liability Act 1961 provided that all claims, both against and in favour of the deceased, survived for the benefit of his representatives. Defamation had been […]
Claim to Estate A claim to the estate of a deceased person, whether under a will or intestacy, must be bought within six years of the date when the right to receive the share or interest accrues. This limitation does not apply to an action taken by a personal representative in order to recover the assets of the deceased in […]
Consent / Voluntary Assumption of Risk At common law, there was a defence of voluntary assumption of risk in a claim in tort. It was based on the principle that the claimant had consented to the risk or action concerned. The principles were applied in relation to industrial employment settings, where the courts deemed employees to have agreed to take […]
Vindicates Constitutional Rights Tort law protects recognised rights and interests. Some of these interests are also expressly or impliedly in the Constitution. These include personal liberty, inviolability of dwellinghouse, freedom of expression, freedom of association, property rights, rights to a good name and the right to bodily integrity. In several cases where there has been egregious conduct by State agents, […]
Employment O’Keeffe Case The generally accepted basis on which vicarious liability is imposed has come to be known as “the Salmond test” after the distinguished academic of that name. This may be expressed as follows: “An employee’s wrongful conduct must, to render the employer liable, fall within the course and scope of his or her employment. It will do this […]