Appendix A Notes on the Presentation: Question 4
The objective of the presentation is to explain and provide an overview of the remedy for damages related to the three grounds for tort which is negligence, trespass and nuisance. There will be five sections: 1) An introduction to the law of tort will be discussed and followed up with the discussions on each of the grounds; 2) the first three sections summarize the measure of liabilities for each of the events/grounds and the tests that courts used in assessing and apportionment of the damages due to the parties. The last part provides the remedies normally assessed and awarded to claimants.
A wrong that is exclusively a breach of contract cannot be a tort and vise versa., but in some cases wrongful act or omission may constitute a breach of contract or a tort.
In contract the obligation of the parties are mutually agreed and is a result of their voluntary acceptance. While in tort the obligation is automatic as imposed by law.
Quite frequently the same act or omission will constitute a tort and a crime – An example is accident as a directly results of accident due to drunk driving where substantial damage and loss of life have occurred.
Tort is a civil wrong – In Stanley v Powell (1891) It was held that the defendant is not liable for the injury suffered by the ammunition bearer as a result of the shot rebounding in trees that causes injury.
Scope of tort law:
The injured party must show that the defendant caused them damage and that their legal rights had been infringed. If not then damage in fact and not damage in law. An example would be setting up a rival business, which is a damage in fact, but not a damage in law.
Claimant may bring action for infringement of legal rights but no damage is suffered by the claimants – e.g. trespass and some kinds of defamation.
Queen is immune in private capacity as are foreign sovereigns, ambassadors and diplomats.
A parent is not liable for torts by their offprings and children – Minor is liable however cannot be sued in the effect would make the minor liable under a contract.
Employers are liable to the torts of their employees unless the employees are acting on their own and had not been following order (Vicarious Liability).
In general employer is liable if: 1) they authorize or ratify the tort, 2) the task employed to be undertaken is illegal, 3) negligent in selecting the contractor,
Remedies in tort is not meant as a punishment (as in criminal law), but rather a compensation to the aggrieved parties or party to minimize the effect of the tortius events on the parties.
General Damages Damages the court is entitled to award
Specific Damages – Damages that the Plaintiff has to plead
Nominal Damages – No actual damage was incurred
Contemptous Damages – Where the plaintiff wins but the court thinks there was no merit in case
Aggrevated Damages – It is a greater insult to be broken upon the Stock Exchange floor than in a private room (Tullidge v Wade (1769) refers)
Exemplary Damages partly given as penalty to show disfavour of the defendant’s behavoiur
In most cases the remedies are taken to be fair and equitable assessment of the damage and to restore the injured party into original condition as if the tort event had not happened.
A person or corporation can seek remedies in tort. Always the law of tort is between two parties. The state cannot be compensated for tort committed by each citizens.
Award is normally at once, except in some instances where further stage payments are awarded in particular for personal injury, future losses, etc.
Provisional damage award are also sometimes awarded as a result of personal injury.
Damages awarded must be commensurate to the injury sustained. It must not put the injured party in a position better than the situation prior to the occurrence of the tortuous event.
Actual damage must be proven and actual, and must be duly proven.
The damage must be proven to be the direct effect of the tortius event. – cause and effect.
Speculative damages are not considered in the assessment of the award for damages
Injured party has the duty to mitigate the damage in best endeavor and reasonable efforts
Claimant – person or persons seeking action for breach
Defendant – persons or person where the action of the claimant is addressed to
Donughue v Stephenson (1932) “You must take a reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Your neighbor is the person so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected by my act.”
In the case of Picart vs. Smith, 37 Phil. 809, 813, the Philippine
Supreme Court said:
“… The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater familias of
the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.” (Torts and Damages in Philippine Law by Judge Hilarion Jarencio)
Blyth v Birmingham Waterworks Co., (1856) “Negligence is the omission to do something which a reasonable mane guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.”
Trespass to Land
Damages – actual damage to the claimants property.
Usually computed as
• the diminished value of the property as a direct results of the trespass of the defendant (applicable where there is no actual damage but as a result of trespass the value of land was dimished);
• the reinstatement of the property prior to the actual trespass action;
• loss of use of the property
• apply when the trespass is continous and repetitive
• court issues injuction for the defendant to stop the trespass