Tort Cheat Sheet PDF

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Law of torts – finals cheat sheet For internal use only.Table of Contents TORTIOUS ACTIONS AND VICARIOUS LIABILITY................................................... INTRODUCTION TO LAW OF TORTS, PROCEDURES FOR STARTING INTENTIONAL TORTS TO THE PERSON....................................................

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Lawoft or t s–final scheatsheet

Fori nt er nal useonl y .

Table of Contents INTRODUCTION

TO

LAW

OF

TORTS,

PROCEDURES

FOR

STARTING

TORTIOUS ACTIONS AND VICARIOUS LIABILITY...................................................1 INTENTIONAL TORTS TO THE PERSON..................................................................6 TORT OF NEGLIGENCE – DUTY OF CARE............................................................12 TORT OF NEGLIGENCE – BREACH OF DUTY.......................................................37 TORT OF NEGLIGENCE – DAMAGE........................................................................50 TORT OF NEGLIGENCE – DEFENCES....................................................................68 BREACH OF STATUTORY DUTY..............................................................................71 INTERFERENCE WITH LAND...................................................................................74 TORT OF DEFAMATION – ESTABLISHING A PRIMA FACIE CASE........................85 TORT OF DEFAMATION – DEFENCES AND REMEDIES........................................90 ECONOMIC TORTS & FALSE REPRESENTATION.................................................98

Law of torts – Theodore Toh cheat sheet

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INTRODUCTION TO LAW OF TORTS, PROCEDURES FOR STARTING TORTIOUS ACTIONS AND VICARIOUS LIABILITY Limitation Period Date of Accrual

Date of accrual of action in tort under s6 of LA 

When the tort is actionable per se, ie. Battery, assault, Wilkinson v Downton, trespass and defamation. The date is the date of breach



If it is not actionable per se such as negligence, nuisance. The date is the date which the damage resulting from the conduct occurs

S24A

[Yan Jun v AG] - purposive approach used to interpret “breach of duty” to encompass all torts.

S24A(2)

[Yan Jun v AG] - if a plaintiff has many claims, some of which are injuries some are not. The limitation period of 3 years under 24A(2) applies only to those claims pertaining to personal injury

S24A(3)

[Lian Kok Hong] - Despite the confusing heading, s24A(3) applies to both latent and patent damages. (a) and (b) respectively

S24A(4)

Degree of knowledge needed

And [Lian Kok Hong] - degree of knowledge required is not knowing certain and beyond possibility of contradiction. Reasonable S24A(6)

belief is sufficient to allow time to start “running”. Suspicion is insufficient

On constructive knowledge [Tan Yang Chai] - The requirement of attributably is satisfied as long as the plaintiff knows of the factual essence of his complaint, in a broad sense. He does not need to know specifically that there is presence of negligence. [Lian Kok Hong] – for 24-A-(d), the action considered must not be frivolous and without merit, taking into account the effort needed to institute a court action Seek author’s permission before forwarding. Use at your own risk.

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Law of torts – Theodore Toh cheat sheet

S24B

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An action for damages for negligence, nuisance or breach of duty to which section 24A applies shall not be brought after the expiration of 15 years from the starting date. Vicarious Liability

Vicarious

(a) the existence of an employer-employee relationship;

liability

(b) the employee committed the tort; and (c) the tort was committed in the course of employment.

The

existence Three different tests: (a) control; (b) integration; or (c) personal investment in enterprise.

of an employeremployee relationship

Control test: This test refers to the degree and extent of control of the employer over the employee’s work for the purpose of determining the existence of an employment relationship.

Integration test; [Stevenson, Jordan & Harrison Ltd v MacDonald]- Under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business.

Personal investment in enterprise test; [BNM v National University Of Singapore] - The question is whether the person performing the services is performing them “as Seek author’s permission before forwarding. Use at your own risk.

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a person in business on his own account”. The considerations to be taken into account include: (a) whether the person performing the services provides his own equipment; (b) whether he hires his own helpers; (c) what degree of financial risk he takes; (d) what degree of responsibility for investment and management he has; and (e) whether and how far he has an opportunity of profiting from sound management in the performance of his task.

Terms of the contract: The terms are also relevant in determining whether there is a contract for services or a contract of service, though they are not conclusive. [Brook Street Bureau v Patricia Davis] - court held that since the agency had no control over her work at the hostel, the contract was not a contract of service. Further, it was expressly stipulated that there is no contract of employment between them.

Lending of workers: The general employer may still be liable for the worker’s tort unless he is able to prove that an entire and absolute transfer of employment has occurred. Use of integration and control tests [Mersey Docks] – general employer could not prove that there was a transfer of employment to the hirer [Chua Chye Leong Alan] - High court held that the jockeys employed by the independent contractor were also agents of the nightclub owner. They had “become so much part of the organisation”, wearing their t-shirts etc Seek author’s permission before forwarding. Use at your own risk.

Law of torts – Theodore Toh cheat sheet

Dual

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vicarious [Chen Qiangshi v Hong Fei CDY Construction Pte Ltd] - Two employers can be liable for the torts of the one employee.

liability Centered around control retained by the first employer R/s

akin

to [Various Claimants v The Catholic Child Welfare Society] - relationship between institute and teaching brothers was

employment

sufficiently akin to that of employer and employee

[E v English Province of Our Lady of Charity] - priest and bishop relationship sufficiently similar to employment Employee

If the employee has a viable defence to the cause of action in tort, the employer would not be vicariously liable for the tort.

committed tort The

tort

was Close connection test;

committed

in [Skandinaviska]: The test for vicarious liability is whether the employee’s tort is so closely connected with his employment that it the course of is fair and just that the employer should be held vicariously liable for the employee’s tort. employment First, determine if there is indeed a connection between the act and the employment, at a broad level Second, foreseeability by the employer of the employee committing such an act Third, policy considerations of compensation and deterrence Fourth, apply the five factors to confirm that the CLOSE connection test is or is not fulfilled [Skandinaviska] + [Bazley v Curry]: Five factors to consider for applying the close connection test are: (a) the opportunity that the enterprise afforded the employee to abuse his or her power; (b) the extent to which the wrongful act may have furthered the employee’s aims; (c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; Seek author’s permission before forwarding. Use at your own risk.

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(d) the extent of power conferred on the employee in relation to the victim; and (e) the vulnerability of potential victims to wrongful exercise of the employee’s power. Special

Detours:

scenarios

[A&W Hemphill] - Where the detour was within the knowledge, expectation and implied permission of the employers, the

Regarding

in employee would be regarded as acting within the scope of employment.

the “course of employment” Travelling to perform work; [Smith v Stages] - There is a distinction between the duty to turn up for work and the notion of already being on duty while travelling to it.

Employee’s fraud: [Lloyd v Grace] - An employer may be held vicariously liable even if the employee defrauded a client of moneys or assets in the course of employment.

[RHB Cathay v Ibrahim] – However, where the third party knew that the employee was acting outside the authorisation of his employer, vicarious liability would not arise.

Entrustment of thing to employee; [Morris v CW Martin & Sons Ltd] - Where an item owned by the customer and entrusted to the defendant for cleaning was stolen by one of the defendant’s employees placed in charge of cleaning the item, the defendant was held to be vicariously liable Seek author’s permission before forwarding. Use at your own risk.

Law of torts – Theodore Toh cheat sheet

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for the loss of the item.

Negligent performance at work; [Century Insurance Co, Ltd v Northern Ireland Road Transport Board] - If the negligence was performed in the course of employment, the employer can be held vicariously liable.

Acting contrary to employer’s instructions; [Rose v Plenty] - The fact that the employee had breached the employer’s express instructions does not necessarily mean that the employer will be absolved from vicarious liability. However, if the plaintiff knew of the prohibition and had the chance to avoid the danger of injury from the prohibited act, he should not be entitled to hold the employer liable.

Employer’s personal vengeance or retaliation; [AG of the British Virgin Islands v Hartwell] - The act of an employee taking personal vengeance or physical retaliation against the plaintiff outside the workplace would normally be regarded as outside the course of employment.

However, [Mattis v Pollock] - If a sufficiently close connection can be drawn between the act of personal vengeance or retaliation and the scope of employment, the employer may be held vicariously liable. Employers’

Indemnity:

claims against [Lee Siew Chun v Sourgrapes Packaging ] - An employer may seek an indemnity from the employee under an implied employee for contractual term. Seek author’s permission before forwarding. Use at your own risk.

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Law of torts – Theodore Toh cheat sheet

indemnity

For internal use only.

However, The right to an indemnity does not apply where the employer was negligently or partly responsible for the damage. NDD

Non-delegable

Employer’s duty to provide a safe system of work: This is a non-delegable duty. The employer would be held liable even if he had

duties

delegated another party to implement a safe system of work. School authorities; Carmarthenshire County Council v Louis [1955] AC 549 (HL); hospitals; Cassidy v Ministry of Health [1951] 2 KB 343: Schools authorities and hospitals have been held to owe non-delegable duties to pupils who were under their care and supervision.

Independent

General rule: An employer is not liable for the torts committed by an independent contractor.

contractors

Exceptions: (a) Breach of a statutory duty which the employer cannot delegate. [MCST 3322 v Tiong Aik] - Purposive approach can be used to interpret statutes to ascertain presence of NDD It was held that the BCA in this case did not pertain to workmanship, but pertained to structural safety matters

(b) Breach of a non-delegable common law duty of an employer for the safety of his employees. (c) Withdrawal of support from neighbouring land. (d) Escape of things which have been brought to the land and which are likely to do damage if they escape under the rule in Rylands v Fletcher. (e) Cases involving extra-hazardous activities undertaken by the independent contractor. [Biffa Waste Services] (f) The employer was negligent in engaging the independent contractor. Seek author’s permission before forwarding. Use at your own risk.

Law of torts – Theodore Toh cheat sheet

Common NDD**

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Law [Woodland v Swimming Teachers Assoc] - vulnerability of the claimant - existing r/s, which concerns actual custody, assumption of duty to protect, lack of control by claimant - defendant delegated an integral part of the positive duty - third party that is delegated has been negligent in the performance of the very function it was supposed to perform

**[MCST 3322 v Tiong Aik]** -

Endorses the 5 defining features of Woodland v Swimmers

-

The SG approach moving forward a claimant must minimally be able to satisfy the court either that:

-

(a) the facts fall within one of the established categories of non-delegable duties;

-

school authorities [Commonwealth v Introvigue]

-

hospitals [Cassidy v Ministry of Health]

-

(b) the facts possess all the features described at above.

-

Additionally, we have to take into account the fairness and reasonableness of imposing a non-delegable duty in the particular circumstance, as well as the relevant policy considerations in our local context.

Director’s personal liability

Policy considerations (submitted but failed in this case) of industry expectations and practice, insurance

General Rule: [Aron Salomon] - Director, shareholder, employee or officer of the company is not liable for a company’s tortious conduct as he is regarded as a separate person in law

Three exceptions: Seek author’s permission before forwarding. Use at your own risk.

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(a) personal assumption of responsibility by the director to the plaintiff when performing his duties on behalf of the company (reasonable person in the shoes of the person making the statement , gives rise to the impression it can be relied upon, mirror image) (b) authorisation, direction or procurement of the company’s tort; or (c) personal commission of the tort. Employee’s

[Merrett v Babb] - In general, the principles regulating a director’s personal liability is applicable to employees. It may also be

personal

dependent on the contractual terms between the employer and the plaintiff.

liability Personal liability: Partners generally not held liable for another partner’s torts

Partner’s personal liability

INTENTIONAL TORTS TO THE PERSON Battery Battery

Elements: (a) a direct physical contact with the plaintiff; (b) the intentional physical contact with the plaintiff; and (c) the physical contact was unjustified.

Direct physical Generally, a positive act is needed to fulfil this requirement. contact Intentional

act Intention: The defendant’s act must be voluntary. The plaintiff has to prove that the defendant intended the consequences of his

of defendant

act. It is not necessary for the defendant to intend the plaintiff any harm since battery is actionable per se.

Seek author’s permission before forwarding. Use at your own risk.

Law of torts – Theodore Toh cheat sheet

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(Rarely) Transferred intent: Where a person intended to hit or shoot a third party and he was not aware that he had struck the plaintiff instead, he may be held liable to the plaintiff in battery. Unjustified

[Collins v Wilcock] - The test of unjustified physical contact is physical contact that is generally unacceptable in the ordinary

physical

conduct of daily life.

contact Assault

Elements: [Stephens v Myers] - An act of the defendant which directly and intentionally causes the plaintiff to reasonably apprehend the imminent infliction of a battery.

[Read v Coker] - plaintiff had shown that the defendant was capable of carrying out the threat. [Mbasogo v Logo] – plaintiff could not show that defendant could carry out the threat **[R v Ireland] - Silence on a telephone call can amount to an assault if the receiver reasonably apprehended the imminent arrival of the caller who is likely to commit violent acts of battery False imprisonment

Elements: An act of the defendant which: (a) directly; and (b) intentionally, causes the plaintiff to be (c) confined within a particular area delimited by the defendant.

Actionable per se: Proof of special damage is not required. Seek author’s permission before forwarding. Use at your own risk.

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Law of torts – Theodore Toh cheat sheet

Direct Act

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[Davidson v Chief Constable] - arrest not directly caused by the defendant since she actually gave info to the police, and it was the police act, in their discretion, that caused her to be arrested.

Intentional act

Intention: The plaintiff must prove that the defendant intended by his act to cause the confinement of the plaintiff. A defendant’s recklessness as to the consequences of the act may be sufficient. Notes: False imprisonment can also come into play when detention is for a duration beyond the specified period.

Confinement or [Bird v Jones] - The restraint of the plaintiff must be total. restraint within particular area delimited defendant

by

[Murray v Ministry of Defence] - the plaintiff need not be aware that he was being detained. He could still be entitled to nominal damages

Police context: [Zainal bin Kuning] - in the context of police arrests, it is what the plaintiff reasonably apprehended. Picking someone up at 3am vs Asking him to go down to the station Defences

Four common defences: (a) consent; (b) necessity; (c) self-defence; and (d) lawful arrest and detention.

Consent

Meaning and scope: It can be expressly stated or implied from the circumstances. Whether the plaintiff had given consent to the defendant’s act constituting the tort is a question of fact. Consent may be invalidated if it is induced by misrepresentation or fraud. [Chatterson v Gerson] - in the medical context, a doctor is only required to inform the patient on “broad terms of the procedure” [Amutha Valli] – implied consent

Seek author’s permission before forwarding. Use at your own risk.

Law of torts – Theodore Toh cheat sheet

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Patient’s right to refuse treatment: (a) Courts recognise the patient’s right to refuse treatment. (b) Refusal of treatment would be scrutinised to determine validity. (c) If invalid,the court will consider what would be in the best interest of the patient.

Withdrawal of consent: The plaintiff can withdraw his consent expressly or impliedly. [Balmain New Ferry Co] - However, the consent that was given would preclude any action by the plaintiff for the p...