Topic 7 Elements of the Tort of Negligence

Topic 7 Elements of the Tort of Negligence - TOPIC 7:...

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TOPIC 7: ELEMENTS OF THE TORT OF NEGLIGENCE Readings : Arjunan and Majid, Business Law in Hong Kong , chap. 21 Tort Distinguished from Breaches of Contract Two major areas of civil liability in our law are those of contract and tort. Liability in contract is based on a legally enforceable agreement between the parties. Generally, only the parties to a contract can enforce the contract or rely on it. Other persons cannot sue or rely on the contract even though they are affected by it in some way. A contract thus does not give rights to the whole world. Liability in tort is generally based on the concept of a legal duty not to injure other persons or their property interests. (The word 'tort' simply means 'wrong' or 'breach of duty'.) Tort law is therefore, not based on a contract, but is based on the concept of a legal duty not to injure other persons or their property. It is a duty owed to people in general. It is thus possible for a person to be liable in tort to other persons with whom he has never negotiated with or even met. A person who is liable under tort law is liable to pay damages to compensate the innocent person for the loss or injury that he may have suffered. Technically then, a tort is a civil wrong independent of contract that the law sees as giving rise to a claim for damages A tortfeasor = the party committing a tort or the wrong-doer FIGURE I : CLASSIFICATION OF TORTS TORTS 105 (a) Assault (b) Battery (c) Grievous bodily harm (d) False imprisonment (e) Defamation indifferent to effect of action or unaware of consequences = tort of nenegligence Intentional Unintentional
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FAME = One’s good name or reputation DE-FAME = To take away someone’s good reputation FIGURE II : CLASSES OF DEFAMATION DEFAMATION Negligence In ordinary language, the term “negligence” refers to carelessness or a lack of proper care and attention. In law, the term has a more specialized meaning. Negligence is established only if in addition to physical carelessness of the defendant that causes harm, the plaintiff establishes the other elements that the law requires. The Burden of Proof The burden of proof is on the plaintiffs to prove each and every element of his or her case i.e. (a) the defendant owed the plaintiff a duty of care; (b) the defendant breached the standard of care; and, (c) the damage suffered by the plaintiff must be a foreseeable consequence of the defendant’s breach of duty on the balance of probabilities. The plaintiff can call expert evidence to show that the defendant’s action was not in accordance with the general code of practice or professional standard of the profession. 106 (defamation in a permanent form e.g. in writing, in film etc) (defamation in a non-permanent form e.g. oral statement)
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Topic 7 Elements of the Tort of Negligence - TOPIC 7:...

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