Tort Study Guide

📖 Core Concepts Tort – a civil wrong (not a contract breach) that causes loss or harm; the wrongdoer is the tortfeasor, the injured party is the plaintiff. Purpose – compensate victims, not punish (contrast with criminal law). Liability Types Direct – only for one’s own tortious act. Indirect – vicarious liability (employer for employee), joint‑and‑several (multiple parties share liability). Absolute/Strict – liability without fault for ultrahazardous activities (Indian absolute liability; Rylands v Fletcher). Negligence – breach of a duty of care causing causation and damage. Elements (5‑step version): duty, breach, actual cause, proximate cause, damages. Duty tests: Anns/Spandeck (proximity + public policy) vs Caparo (foreseeability, proximity, fairness). Intentional Torts – deliberate acts that a reasonable person knows are likely to cause harm (e.g., assault, battery, false imprisonment, defamation). Nuisance – unreasonable interference with land use (private) or public rights (public). Economic Torts – interference with commercial relations; pure economic loss usually requires a special relationship (Hedley Byrne). Remedies – primarily monetary damages; injunctive relief may stop ongoing harm; damages may be limited by caps or barred (punitive damages unavailable in many civil‑law systems). Defences – consent, comparative/contributory negligence, illegality (ex turpi causa), sovereign/charitable immunity, Good‑Samaritan statutes. --- 📌 Must Remember Negligence Elements: Duty → Breach → Causation (actual + proximate) → Damages. Duty Tests: Anns/Spandeck: Proximity and public policy. Caparo: Foreseeability and proximity and fairness. Vicarious Liability: Employer liable if employee’s act is within the scope of employment. Strict Liability: Rylands v Fletcher – escape of dangerous thing from non‑natural use. Comparative vs Contributory Negligence: Comparative – reduces damages proportionally. Contributory – bars recovery for any plaintiff fault (few jurisdictions). Economic Loss Rule: Pure economic loss recoverable only with a special relationship (e.g., Hedley Byrne). Key Defences: Consent – full defence if plaintiff knowingly accepts risk. Illegality – no recovery if plaintiff’s own illegal conduct contributed. Sovereign Immunity – government immune unless waived. --- 🔄 Key Processes Negligence Claim Flow Identify the duty of care (apply Anns/Spandeck or Caparo). Determine breach (reasonable person standard). Prove causation – Actual cause (but‑for test). Proximate cause (foreseeability, no superseding cause). Show damages (quantify loss). Apply defences (e.g., comparative negligence). Vicarious Liability Determination Confirm employer‑employee relationship. Check if employee acted within scope (authorized duties, furthering employer’s business). Strict Liability under Rylands v Fletcher Is the thing non‑natural use of land? Did it escape? Was the escape causing damage? Economic Loss Recovery Identify pure economic loss. Establish a special relationship (e.g., professional adviser‑client). --- 🔍 Key Comparisons Negligence vs. Strict Liability Negligence: requires fault (duty + breach). Strict: liability despite lack of fault for hazardous activities. Comparative vs. Contributory Negligence Comparative: plaintiff recovers reduced amount (proportional). Contributory: any plaintiff fault bars recovery. Intentional Torts vs. Nuisance Intentional: deliberate act against person/property. Nuisance: unreasonable ongoing interference, often without intent. Common‑Law vs. Civil‑Law Tort Systems Common‑law: doctrine‑driven, punitive damages allowed (US). Civil‑law: codified statutes, no punitive damages (France, Germany). --- ⚠️ Common Misunderstandings “All torts are negligent.” – Intentional torts and strict liability exist without negligence. “If the plaintiff consented, they can still claim damages for negligence.” – Valid consent is a complete defence; no liability for the consented risk. “Economic loss is always recoverable.” – Generally barred unless a special relationship is proven. “Vicarious liability means the employer caused the act.” – Only the relationship and scope matter, not the employer’s direct fault. --- 🧠 Mental Models / Intuition “Risk‑Flow Chart” – Who caused the risk? → Was the risk inherent to the activity? → Is the activity ultra‑hazardous? → Apply strict liability. “Fault Ladder” – Intentional → Negligent → Strict (no fault). Climb up the ladder to see which level of culpability applies. “Proximity‑Policy Balance” – For duty, weigh closeness of relationship against public policy concerns (Anns/Spandeck). --- 🚩 Exceptions & Edge Cases Absolute Liability (India) – No need to prove fault for ultrahazardous activities (M. C. Mehta case). Joint‑and‑Several – Even if one defendant is only partly at fault, a plaintiff may recover the whole award from that defendant. Force Majeure (China Mainland) – Acts of nature can excuse tort liability. Good Samaritan Immunity – May shield rescuers acting without compensation (US‑style statutes). --- 📍 When to Use Which Assessing Duty – Use Caparo when you need a modern, three‑prong test; use Anns/Spandeck for jurisdictions that still follow the two‑step proximity‑policy approach. Choosing Remedy – Monetary damages for most torts. Injunction when the wrongful conduct is ongoing or threatens future harm. Punitive damages only in jurisdictions that allow them (US, some Commonwealth states). Defence Strategy – Raise consent first if the plaintiff voluntarily accepted the risk. Follow with comparative negligence to reduce damages. Use illegality only when plaintiff’s own illegal act is material. --- 👀 Patterns to Recognize “Foreseeability → Duty → Liability” – If a harm was reasonably foreseeable, a duty likely exists. “Employer‑Employee → Same Scope → Vicarious Liability” – Look for the employment relationship and scope of duties. “Hazardous Activity + Damage = Strict/Absolute Liability” – Ultrahazardous or non‑natural use triggers strict rules. “Economic loss + No relationship = No recovery” – Absence of a special relationship bars pure economic loss claims. --- 🗂️ Exam Traps Distractor: “Consent always eliminates all damages.” – Only true if consent is voluntary, informed, and without ulterior motive; otherwise, limited or no defence. Trap: “All jurisdictions allow punitive damages.” – Many civil‑law systems (France, Germany, Québec) prohibit them. Misleading answer: “Joint‑and‑several liability means each defendant is solely liable.” – It means each can be held for the whole judgment, but the plaintiff can still sue any one. Near‑miss: “Negligence requires intent.” – Negligence is unintentional breach of duty; intent is required only for intentional torts. ---