Torts pt 2

Battery

a battery is an offensive contact with the plaintiffs person, with intent and without lawful justification

Assault

an assault is conduct by the defendant causing reasonable apprehension of immediate offensive contact with the plaintiffs person, where the defendant intends to bring about such apprehension of immediate offensive contact

False imprisonment

False imprisonment is a positive act on the part of the defendant to constrain the claimants freedom of movement to a bounded area, with intent to so constrain the plaintiff

Intentional infliction of distress

intentional infliction of distress is an act by the defendant of unjustifiable conduct directed at the plaintiff with damages amounting to physical injury or recognisable psychiatric illness, and with intent on the part of the defendant to cause physical harm or psychiatric illness, or recklessness to such a result

To get to court on a negligence claim, plaintiff must show;

a) a duty of care owed by the defendant

b) that the defendant breached the duty of care owed to the plaintiff

c) that the defendants breach of duty was the actual and legal cause of the harm suffered by the plaintiff

d) that the damages were reasonably foreseeable

duty of care

to whom is the duty owed? foreseeability and proximity

Caparo criteria for establishing a DOC (UK)

1) whether it is foreseeable that the conduct of the defendant will cause damage to the claimant

2) whether their is sufficient proximity between the parties

3) whether the situation is one in which it would be fair, just and reasonable to impose a duty of care

NZ criteria for establishing DOC

1) whether their is sufficient proximity between the parties (including foreseeability)

2) whether the situation is one in which it would be fair, just and reasonable to impose a duty of care

Their is an affirmative duty to prevent harm from the third persons, only if:

i) the harm is reasonably foreseeably

ii) their is proximity+ between the defendant and the plaintiff

iii) it is fair, just and reasonable to impose a duty of care on defendants in such circumstances

examples of conditions in DSM-5

• PTSD

• major depressive episode

• pathological grief disorder

• generalised anxiety disorder

The Alcook approach (ENG) - to recover as a secondary victim, plaintiff must show:

1) close ties of love and affection with the person injured, or imperilled

2) proximity in time and space to the injury or imperilment

3) direct perception of the injury or imperilment

rule in Hedley berne - a defendant will owe the plaintiff a duty of care in relation to a statement if:

a) defendant has some special skill

b) based on the defendants skill, plaintiff asked the defendant for advice or information

c) defendant knew, or should have known, plaintiff may rely on the advice or information and to what purpose

d) it was reasonable for the plaintiff to so rely on the advice or information

consequential economic loss

in general, a plaintiff may recover damages for economic loss directly resulting from property damage caused by the defendant (and in other common law jurisdictions, for economic loss resulting from physical injury)

relational economic loss

in general this type of loss is not recoverable

pure economic loss

in general, the courts are less willing to allow recovery for this type of loss… unless their is sufficient proximity between the plaintiff and the defendant

2 fold test - criteria for establishing a duty of care

1) whether their is sufficient proximity between the parties and

2) whether the situation is one in which it would be fair, just and reasonable to impose a duty of care

Negligence —> a plaintiff must show:

i) a duty on the part of the defendant towards the plaintiff

ii) breach of that duty by the defendant

iii) that the breach of the duty by the defendant was the actual and legal cause of the defendants injury

iv) that the plaintiff suffers reasonably foreseeable damages

violation of statute —> breach of a standard of care in a common law negligence case may be established by proving the applicability and breach of statute (borrowing the statute) —> in proving the availability of the statutory standard, plaintiff must show the following:

1) that she is in the same class of people intended to be protected by the statute

2) that the statute was designed to prevent the same type of harm that the plaintiff suffered

general rule for “but for” test

an act or omission is “cause in fact” of the injury when the injury would not have occurred but for the defendants act or omission

Loss of chance

in some cases, it may be held that the defendants negligence increased the likelihood of a poor outcome for the plaintiff or deprived her of the possibility of avoiding such an outcome

loss of chance rule

plaintiff must show on the balance of probabilities that, had it not been for defendants negligence, the plaintiff would have avoided the loss

remoteness test

a defendant will only be liable for the reasonably foreseeable consequences of their negligent act or omission

supervening events rule

where two tortious events are seperated in time, but both have been sufficient to cause the damage, the first event will be treated as the cause

rule for supervening non tortious events

if the subsequent supervening event would have been sufficient in itself to cause the harm complained of, the causative effect of the initial tort is treated as spent or obliterated