Law of Tort

LOGO
 THE LAW OF TORT

 Definition of Tort
 French - ‘tortus’, which means “wrong”.

 Tort is a civil wrong e.g.

 Breach of Contract
 Breach of Trust
 Definition of tort

 A person who is legally injured may be able to

use law of tort to recover damages from someone
who is legally responsible, or "liable," for those
injuries.

 Generally, law of tort defines what constitutes a

legal injury, and establishes the circumstances
under which one person may be held liable for
another's injury.
 Definition of tort

 Example
 if somebody throws a ball and accidentally hits a
pedestrian in the eye, the pedestrian may sue the ball
thrower for losses suffered due to the accident (for
example, costs of medical treatment or lost income
during time off work).
 Whether or not the pedestrian wins the case will
depend on whether he can prove that the thrower
failed to exercise ordinary care in undertaking the
activity that caused the injury.
 Examples

 Example
 Mr. A hires a taxi driven by Mr. B, B drives
recklessly, and A is injured.

 A has a cause of action against B:-

 Implied contractual duty to drive with care
 Breach of duty of care under tort of negligence
 Injury

 In law of tort, injury does not only mean a

physical injury such as where the
pedestrian is struck by a ball.

 "Injuries" reflect any invasion of any

number of individual "interests” e.g.
property rights.
 Tort in Construction Projects

 Construction stage
 Nuisance (noise, dust, vibrations)
 Trespass (children trespass, illegal entry)
 Occupier’s Liability (dangerous construction
operations, endangering lawful visitors)

 Consultancy Stage
 Professional negligence (design, costing)

 Completion Stage
 Professional Negligence (Practical completion)
 Duty

Components
of Tort
Breach
of Duty

Damages
NEGLIGENCE
 Definition

 Negligence means ‘careless’ conduct.

 Failure to do some act, which a

reasonable man in the circumstances
would do, or the doing of an act that
results in injury.
 Elements of Negligence

 Any Plaintiff in an action for negligence, is

required to prove:-
 The Defendant owed the Plaintiff a duty of care.
 The Defendant has breached that duty of care.
 The Plaintiff has suffered damages resulting from the
breach.
 NEGLIGENCE

Introduction
 If A performs an action, he must perform
it with care.

 If A is careless, and as a result B is injured

or his property is damaged, A is said to be
negligent and can be liable to B for his
injury or damage.
 Examples

 A contractor who carries out building

works, he must carry them out with care.

 If he is careless and the building collapses,

resulting in injury to ultimate occupant,
the contractor can be liable for the injury.
 Duty of Care

 There is no liability if there is no legal duty of care.

 The duty of care, must be one that the Defendant owes to
the Plaintiff.
 A person may have a duty of care, but he may not have a
liability in negligence because he has not breached that
duty of care.

 Example
A land owner, having given no permission to any one to be
on his land – and having no knowledge of any other person
present on the land, the land owner may enter his land and
do any legal thing he likes.
Occupier’s
Liability
 Elements of Occupier’s Liability

1. PREMISES
2. OCCUPIER
3. VISITORS
4. DUTIES
1. Premises

Land Construction sites, mines, fields,

schools, university campuses.

Structures Tunnels, electric poles or pylons,

oxidation ponds, railway lines.

Buildings Houses, Offices, shops, malls, schools,

bus terminals, railway stations.

Movables Buses, lorries, tractors, aircrafts.

2. Occupier

 An occupier is someone who has the

immediate supervision, control and the
power of permitting or prohibiting the
entry of other person.
 The contractor of a project site is an
occupier of the premises.
 Who’s an Occupier?

 In order to be an occupier, it is not necessary for

a person to have entire control over the
premises.

 He needs not have exclusive occupation.

 He only needs to have some degree of control.

 Actual possession is not required to determine

the adequacy of sufficient control.
 Occupier

More than one Degree of Degree of

Occupier Control Occupation

 Two or more persons may be ‘occupiers’. And

wherever this happens, each is under a duty of
care towards person coming lawfully on the
premises, dependent on the degree of control.

 If each fails in his duty, each is liable to a visitor

who is injured in consequence of his failure, but
each may have a claim to contribution from the
other.
3. Visitors

Contractual Entrants
LAWFUL
Invitees
VISITORS
Licensees

UNLAWFUL
Trespassers
VISITORS
 Lawful Visitors

1. Contractual entrants
 A person who enters the premises on a
contractual right
 Two types of contractual entrants:-
a. Main purpose entrant
b. Ancillary purpose entrant
 Lawful Visitors

a. Main purpose entrant

 Enters the premises for the purpose of occupying
it and who has paid to be on the premises, tenant
in a house or guest in a hotel.

b. Ancillary entrant
 A person who has paid to be on the premises for the
primary purpose of some activity other than for personal
dwelling e.g., passenger on a bus, patient at a hospital,
viewers at a cinema, etc.
 Lawful Visitors

2. Invitees

 An invitee is a person who enters premises

with the permission or on the authority of
the occupier.

 Purpose of entrance: common interest

between the occupier and the invitee.

 Types of invitees
 legally authorized entrants
 business visitors
 Lawful Visitors

2. Invitees

a. Legally authorized entrants

 Persons who enter the premises on the authority of the law
such as policemen, firemen, meter-readers or health
inspectors.

b. Business visitors
 Persons who enter premises, be it public or private, for
materialistic reason and who actually bring economic
advantages to the occupier, such as customer at a
supermarket, guest at a hotel, a motorist at a petrol
station, a customer at a bank or an employee at his place
of work.
 Lawful Visitors

3. Licensees

 A licensee is a person who enters the premises

with the occupier’s permission, be it express or
implied. The occupier does not have any interest
in the presence of licensee on his premises,
unlike a contractual entrant and an invitee.
 Three types of licensees:-
a. Entrant as of right
b. Social visitors
c. Entrant by implied permission
 Lawful Visitors

3. Licensees
a. Entrant as of right
 Persons who have the right to enter into premises that are
open to the public such as public park, public lavatory,
public library, public swimming pool and other building
which is open to the public.

b. Social Visitors
 A person who enters into private premises with permission
of the occupier by invitation. His purpose for being on the
premises is social in nature and does not confer any
materialistic or economic advantage to the occupier, e.g.
being a guest.
 Lawful Visitors

3. Licensees
c. Entrant by implied permission
 An entrant by implied permission enters into
premises in circumstances where the court
implies a license.
 He enters without express restriction by the
occupier.
 Unlawful Visitors

Trespassers
 A trespasser is a person who enters premises without
any express or implied permission of the occupier.
 The occupier might not know of his existence on his premises.

 A thief, a child who wanders around, someone who

has lost his direction.

 A person who enters on the premises legally may

become a trespasser if he goes onto a restricted area,
or where he stays on the premises beyond the time
allowed to him, or where there has been improper use
of the premises.
4. Occupier’s Duty

The occupier is under a duty to see that

visitors who come to the premises are
reasonably safe for the purpose for which
they are there.

The tort of occupier’s liability is very much

relevant to engineering works.

A contractor that takes possession of a

project site from the employer essentially
becomes an occupier.
 Occupier’s Duty

The law of tort imposes on the contractor

duty to ensure that visitors coming into
the site are safe from danger.

If the contractor neglects this duty and a

visitor is injured or his property is
damaged in the consequence, the
contractor can be found liable to the
visitor.
TRESSPASS
 Introduction

 Trespass is another example of civil wrong under

the law of tort.

 It involves unjustifiable (or even unlawful)

interference with one’s possession by the
trespasser.

 Trespass is a common occurrence in engineering

project works.

 Thus, consultant should have the knowledge and

be able to advise clients on the issues relating to
trespass.
 Types of Trespass

There are 3 types of Trespass:

Trespass to Trespass to Trespass to

Person Goods Land
 Trespass to Person

Some wrong suffered by a person in the nature of:

(1) striking a sword

Assault drawing a gun
(indecent assault)
throw a bottle
causing black eye
(2)
Battery throwing water
holding one’s arm

(3)
False Imprisonment
 Trespass to Person

Assault
 It is an intentional act or threat which
instills fear of imminent physical harm in
an individual.
 No touching needs to take place - the threat alone is
sufficient.

Battery
 It is when a person uses force against
another without his or her consent.
 Physical contact is required for this tort.
 Trespass to Person

False imprisonment
 False imprisonment is when a person
prevents another from moving without
consent.
 The confinement must be non-consensual
and must be intentional on behalf of the
wrongdoer.
 The victim must also know that he or she
is being held without consent and has no
available means of escape.
 Trespass to Goods

 Intentional or negligent interference with a

person’s possession of goods.

 The interference must be direct and forcible.

 However, a mere touching could be a trespass.

 Examples:
Throw another’s book out of a window
Remove a bicycle from a shed
Remove wheel of another’s car
Remove subcontractor’s materials out of store room?
Trespass to Land

Definition
of
Land

Forms of
Trespass to
Land
 Trespass to Land

 Forms Trespass to Land

(3)
(1)
Placing or throwing
Entry on land
material upon land of
of another
another

(2) (4)
Remaining on land Improper use of
of another Highway
 Trespass to Land

1. Entry on Land

• Putting hand on fence

• Extending hand through open window
• Entry beneath the surface
• Rain washed materials into another’s land
 Trespass to Land

2. Remaining on Land

Remaining on land
of another
 Trespass to Land

4. Placing or Throwing Material

Earthwork - depositing earth on someone’s land -

damage caused to land
 Trespass to Land

4. Improper use of Highway

Improper use of
Highway
 Trespass to Land

 Common Trespass in Construction

 Site possession/Access - giving possession of site
without proper access.
 Inaccurate setting out
 Drainage
 Water reticulation.
LOGO