Torts

Intentional Torts

Intent and direct harm, damage not need be proven
Forms
Negligence	Duty of care Breach of duty Damages
Defences
Consent	Express or implied Effective consent – Real (informed) and freely given (not under duress) Capacity to consent
Necessity	Necessary to prevent imminent harm
Self-defence	Reasonable expectation of physical harm and force used not excessive

Untentional Torts

Consequential harm, damage to be proven

Forms

Assault

Threat or reasonable apprehension of harm (physical contact not necessary)

Battery

Unauthorised harmful physical contact

False Imprisonment

Intentional restraint of a person without their consent

Negligence

Duty of care, breach of duty and damage suffered as a result, affected by CLA
Duty of Care	Duty of care owed where it is reasonably foreseeable that an act/omission might reasonably harm someone Arises in context of commercial relationship, special relationship (e.g. fiduciary) or as part of undertaking by a party Reasonable foreseeability standard is higher in the case of: mental harm, pure economic loss, public authorities and occupier’s liability (that type of harm must have been reasonably foreseeable)
Breach of duty	Conduct falling below standard of care. Standard determined by: Probability of injury/damage, magnitude of damage, burden of measures, social utility of actions Standard lowered for inherent or obvious risks – e.g. contact sport, adventure sports Standard of care affected by status of person – child, disabled, professional (not just assumed to be reasonable person)
Causation	Whether the breach of duty caused the damage Apply ‘but for’ test – but for the action, would the damage have been caused? An intervening act may break the chain of causation
Damages	Remoteness – Defendant is not liable for damages that are too remote – not reasonably foreseeable, but this is subjective to the victim (eggshell-skull rule) Concurrent liability can exist proportionately where multiple parties cause the damage Vicarious liability – party who has responsibility bears liability, e.g. employer Damages – economic (expenses, loss of earning capacity) and non-economic (pain and suffering)
Defences	Voluntary assumption of risk, dangerous recreational activity, contributory negligence