Basic principles of the Tort of Negligence
1. What are the differences between Contract and Tort?
1) Requirement for the contact: offer acceptance and consideration between the parties to form a legally binding agreement. (whereas in tort, there is no agreement between the parties) The parties are known to each other, and they are consensus parties. The compensation for breach of contract is to put the eviction in a position as if the obligations were fulfilled.
2) Tort is a wrongful act or omission for which damages can be obtained in a civil court by the person wronged. Wrongful act or omission which caused personal injury or property damage. The wrongful act or omission can be intentional or negligent. There is no agreement between the parties for an action in tort.
2. What are the 3 elements for a negligent action?
The court has to establish the standard of care that an average reasonable person or a person professing special skills should have taken in the circumstances. This test is objective, ie it dose not take into account what the defendant might have considered to be reasonable in the situation.
b. The Court then determines whether the defendant has met the standard established above.
3) The plaintiff suffered damages flowing from the breach.
The loss that the plaintiff has suffered must be caused by the defendant’s breach of duty of care. It must not be too remote.
3. Case Study
a. What is Best Shoes Ltd’ cause of action against Jack for the damaged shoes?
Best shoes- plaintiff- person who commence the legal action against the defendant.
Jack- defendant- person who defect the action.
1. Jack owed a duty of care to Best Shoes.
In this case, Jack was instructed by the manager of Excellent Transport Limited to deliver a container of shoes to Best Shoes. So Jack actually has the legal obligation to take care of the shoes when he foresees a loss occurring if he acts carelessly.
2. Jack was in breach of the duty of care. The standards of care expected of Jack is to drive within spend limit and carefully especially when it is raining.
3. Best Shoes has suffered damages arising from Jack’s breach of his duty of care. Because Jack crashed into another car. The shoes in the container were damaged.
b. Can Best Shoe commence legal action Excellent Transport, and on what basis?
Yes, they can. They can basis on the Vicarious Liability. In this case, Jack is an employee for Excellent Transport. Lister –v- Lesley Ltd (2001) 2AER 769: The employer’s vicarious liability for the wrongful act of an employee depended on the relative proximity between the nature of the employment and the nature of the wrongful act committed by the employee.