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RC Steenkamp
16 May 2018
The Law of Tort
RECAP
What is a tort?
How is it different from criminal law and law of contract?
What interests does tort law protect?
What is defamation?
Is trespass to person a crime or a tort?
Give an example of public and private nuisance?
GENERAL RULE
Has to be remembered that the general criteria/standard for judging the behaviour of the defendant is that of the reasonable person
This standard is abstract and difficult to define
▪ Characteristics of the ‘reasonable man’ will vary with the circumstances of each case
▪ Generally, the ‘reasonable man’ can be said to be someone who is ‘ordinary, typical; he is neither particularly courageous, nor particularly timid; neither reckless nor over-careful; neither an expert in law nor totally without common sense’
Variety of factors used to establish whether the conduct was reasonable
THE MAIN TYPES OF TORTS
Following torts are of relevance for the present lecture:
1. Defamation
2. Nuisance
3. Trespass
4. Strict Liability
5. Negligence
STRICT LIABILITY
This refers to a tort where liability is
imposed despite a person not acting either
intentionally or negligently
Rylands v Fletcher
A person who collects something on his
land which is likely to cause harm if it
escapes is said to be strictly liable for any
damage caused by its ‘escape’
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NEGLIGENCE
Meaning of the term ‘negligence’?
Probably the most common tort
As a tort, negligence is more than carelessness
▪ NB!! Negligence is the breach of a duty to take
care
▪ Donoghue v Stevenson
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NEGLIGENCE
3 (elements) questions to ask whether or not a tort of negligence has been
committed:
1. Did the defendant owe the claimant a duty of care?
2. If yes, did the defendant breach that duty?
3. Did the defendant’s actions cause damage to the claimant?
Various types of damages
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1. Duty of Care +
2. Breach of that Duty +
3. Damage
Negligence
NEGLIGENCE
Negligent acts can cause different types of damage including
▪ Physical damage – generally easy to quantify
▪ Financial loss
▪ Nervous shock (psychiatric illness)
▪ Pure economic loss
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REMEDIES
Two main remedies are available for victims of tort:
1. Damages
2. Injunctions/interdicts
Generally, damages are the most important remedy but certain situations cannot always be rectified by damages alone
▪ Injunction and trespassing?
DAMAGES AS A REMEDY
DAMAGES
Nominal Ordinary
(Compensatory)
General
(non-pecuniary)
Special
(pecuniary)
Exemplary (punitive)
DAMAGES AS A REMEDY
Once found liable for a tort, damages is the amount of money a
defendant has to pay to the claimant
The damage suffered by the claimant is divided into
pecuniary and non-pecuniary loss
Purpose of damages?
▪ Exception to the rule – punitive damages?
DEFENCES
Even if all elements of a tort are proven, a tort claim may still fail if
the defendant can rely on a defence
▪ That is, a legal justification for the defendant’s actions
Complete vs partial defences?
General vs special defences?
GENERAL DEFENCES
Volenti non fit injuria –
▪ ‘To one who volunteers, no harm is done’
▪ Consent as a defence
▪ Morris v Murray
Ex turpi causa non oritur actio –
▪ Refers to the situation where injury arises as a result of
the parties engagement in illegal activities
Necessity
▪ Even if X’s action caused some damage, greater loss would have occurred from his inactivity
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SPECIAL DEFENCES
Defamation:
▪ Freedom of speech
▪ Truth as a defence
Trespass
▪ Right of way
Vis major as a special defence
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