some torts notes
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The differences in the two types of cause of action, i.e. trespass and case, can cause considerable procedural difficulties where the one set of facts gives rise to an action in both trespass and case. Thus, where the one set of facts potentially gives rise to both a non-highway trespass and a negligence action, the onus in the trespass action is on the defendant to disprove (on the balance of probabilities) that he or she was at fault. In contrast, in a negligence action, it is the plaintiff who must prove (on the balance of probabilities) that defendant was at fault, i.e. negligent. Negligence: An action in tort law, the elements of which are: the existence of a duty of care: breach of that duty; and material damage as a consequence of the breach of duty; and material damage as a consequence of the breach of duty. A duty of care is a legal obligation to avoid causing harm, and arises w...
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