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Tort and negligence claims—overview

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This subtopic covers general torts, negligence and nuisance. For a summary in tabular form of key and illustrative decisions in negligence claims (as from 1 January 2020), see Practice Note:
Negligence claims—key and illustrative decisions.

What are claims in tort?

Definition and background

The two key and mutually supporting functions of tort law are to:

• compensate people when their rights are infringed, and

• provide a mechanism for redress, to thereby define and uphold those rights

The courts strive to strike a balance between promoting corrective justice and remedying wrongs on the one hand and not contributing to the creation of an overly litigious society that believes there
must be a remedy for every misfortune on the other. In attempting to achieve this, judges consider the balance of risk and responsibility at both an individual and a societal level.

Tort law seeks to provide protection of varying degrees for physical and mental health, personal property and real property (ie land) as well as personal privacy and reputation.

For further guidance on the evolution of tort claims and the types of interest that tort law seeks to protect, see Practice Note: What is a tort?

The law of tort is concerned with civil ‘wrongs’ as between private individuals. It is to be distinguished from the criminal law, which is concerned with ‘wrongs’ against the state or civil society generally.

Unlike the law of contracts, in which the legal relationship between private individuals is generally governed by the rules mutually agreed by the parties to the contract, in tort the boundaries of what is
permissible as between private individuals is determined by the common law (supplemented by statute in parts) as explained by the courts.
The different types of tort

There are many different types of tort, the most commonly known of which are those of negligence and nuisance.

For a brief outline of the other species of tort, including the ‘trespass’ torts (trespass to the person, land and goods), privacy/defamation, liability for animals, product liability, employers’ liability and
vicarious liability, misfeasance in public office, accessory liability, procurement liability, malicious civil proceedings and the tort of abuse of process, see Practice Note: Tort—the different types of tort.

There is a distinction between tort claims and contract claims, although there are occasions (such as professional negligence claims) where a claimant may be able to pursue a claim in tort and/or
contract in the alternative. For specific guidance on professional negligence claims, see: Professional negligence claims—overview.

The tort of negligence

The most common form of tort law is that of negligence. For liability in negligence to be founded, four key ingredients must be present:

• duty of care

• breach of that duty

• damage (which is caused by the breach)

• foreseeability of such damage

The various elements of each of the tests overlap and their separation can be artificial upon close analysis in certain circumstances. However, considering each of the items in turn is an essential guide
to testing whether an actionable claim in negligence has arisen.

For general guidance on these key ingredients, see Practice Note: Key elements to establish a claim in negligence.
Duty of care

For negligence to be established, the defendant must owe the claimant a duty to take reasonable care not to inflict damage on them.

Whether or not a duty of care exists in any given scenario will depend on the interplay of three factors (Caparo Industries v Dickman, Rich v Bishop Rock, The Nicholas H):
References:
Caparo Industries Plc v Dickman [1990] 1 All ER 568
Rich v Bishop Rock, The Nicholas [1995] 3 All ER 307
• foreseeability of harm to the claimant if the defendant acts or fails to act in a certain way

• ‘proximity’ of the defendant’s acts or omissions to the potential claimant, and

• it must be ‘fair, just and reasonable’ to impose liability on the defendant

Establishing and defining a duty of care requires careful consideration where omissions are concerned, as well as in situations involving third-party criminal acts, ‘assumption of responsibility’ and
merely ‘volunteered’ advice. The courts adopt an incremental approach to the imposition of liability in ‘novel’ situations which have not previously been considered.

There are a number of limits imposed on the existence of a duty of care, including: where the defendant is having to balance competing interests, the fear of opening the ‘floodgates’ to claims and
refusing to sanction illegal activities. More specific restrictions are imposed on duties owed in the context of ‘pure economic loss’ and psychiatric injury. Special considerations apply to the emergency
services.

For more detailed guidance on the imposition of a duty of care, see Practice Note: Negligence—when does a duty of care arise?

See the following Practice Notes for specific guidance on:

• Tortious liability—companies as to parent company liability for the negligence of their subsidiaries, including the Supreme Court decisions in Vedanta v Lungowe and Okpabi v Royal Dutch
Shell
References:
Vedanta Resources Plc v Lungowe [2019] UKSC 20
Okpabi v Royal Dutch Shell plc [2021] UKSC 3

• Negligence—banks and the duty of care with regard to the ‘Quincecare’ duty owed by banks to their customers, assuming responsibility and volunteering advice and financial mis–selling
claims
 References:
Barclays Bank plc v Quincecare Ltd [1992] 4 All ER 363

Breach of duty

Once a duty of care is established, the claimant must prove that the duty has been breached. This is assessed by reference to the objective ‘reasonable person’ test, and the following four factors are
common to all alleged breaches:

• probability of harm occurring

• seriousness of the harm should it occur

• utility of the defendant’s activity

• cost of precautions

More specific considerations that might arise include the relevance of ‘common practice’, the role of hindsight, errors of judgment, the relationship between the nature of the duty and standard of care
and the standard of care owed to children.

For further guidance, see Practice Note: Negligence—when is the duty of care breached?

For guidance on the standard of care with regard to professionals performing their duties, see Practice Note: Standard of care in professional negligence claims.

For specific guidance on when a breach of statutory duty can give rise to a claim in negligence, see Practice Note: Negligence—breach of statutory duty.

Causation and remoteness of loss

Causation is a key element in pursuing a successful claim in tort (other than in strict liability torts, such as trespass to the person) and can often prove to be the most difficult aspect to establish.

There are two elements to establishing causation in respect of tort claims, with the claimant required to demonstrate that:

• the defendant’s breach, in fact, resulted in the damage (harm) complained of (factual causation), and

• this damage (harm) should, as a matter of law, be recoverable from the defendant (legal causation)

The claimant has the burden of establishing each of the above two factors.

The starting point for a claimant in most cases is to prove in the affirmative that the claimant would have been unlikely to suffer loss ‘but for’ the defendant’s breach of duty. However, the courts have
established more relaxed rules where there is scientific uncertainty that means the claimant is unable to prove the actual causal mechanism.

Where a claimant establishes that they have, as a matter of fact, suffered loss as a result of the defendant’s breach of duty, the courts are unwilling to provide a full indemnity to the claimant for the
losses suffered (save in cases of fraud). Rather, the court, in considering legal causation, examines:

• first, whether the tort is the effective cause of the eventual loss or whether there have been other, intervening, factors (effective cause)

• second, how far removed the damage suffered is from the contemplation of the defendant (remoteness of damage)

For further guidance on the applicable principles of both factual and legal causation in tort law, see Practice Notes:

• Tort claims—causation as a matter of fact

• Tort claims—causation in law

Professional negligence claims

A common form of negligence claim is where the claimant alleges that a professional (eg doctor, lawyer or accountant) has failed to carry out their role with the requisite degree of care and skill. These
claims are referred to as professional negligence claims, but they often involve a contractual element as well given the frequent existence of some form of professional retainer. Consequently, the law
of negligence as it applies to professionals has its own particular considerations. These are considered in detail in the subtopic: Professional negligence claims—overview and, in particular, the
following Practice Notes:

• Standard of care in professional negligence claims

• Causation and remoteness in professional negligence claims

Damages in tort claims

Where a claimant successfully establishes all necessary elements of a tort perpetrated by a defendant, they are entitled to recover money in respect of the wrong committed against them. Money
awarded by the courts in this regard is described as ‘damages’.

Damages in tort are generally compensatory and aim to put the claimant in the position they would have been had the tort not been committed.

There are a variety of different damages that can be sought depending on the nature of the loss and other, specific, circumstances. General damages are to compensate the claimant for the non-
monetary aspects of the specific harm suffered; whereas special damages compensate the claimant for quantifiable monetary losses suffered as a result of the defendant’s act or omission.

Less commonly, the court may award exemplary (or punitive) damages and certain claims carry with them a remedy in the form of aggravated damages.

Restitutionary damages apply where the court seeks to strip back the gain obtained by the defendant at the claimant's expense.

The quantum of damages awarded can be reduced in certain circumstances, eg where the claimant has failed to mitigate their loss or where the claimant are themselves partly at fault (contributory
negligence).

For further guidance on seeking damages in tort claims, see Practice Note: Damages in tort claims—recovery and assessment and for when damages for loss of a chance may be recoverable, with
reference to the test in Allied Maples v Simmons & Simmons and its further consideration in subsequent authorities, see Practice Note: Loss of chance damages.
References:
Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907
For specific guidance on seeking damages in misrepresentation claims, see the Practice Note: Damages as a remedy for misrepresentation.

For a comparison between damages in tort and contract claims, see Practice Note: Claiming damages—tort and contract claims compared.

Defences to tort claims

It is a ‘defence’ to a claim in tort to dispute a crucial element of the claim, eg in negligence claims disputing the existence or breach of a duty, or pointing to a break in the chain of causation.

However, a defendant may also be able to avail themselves of a specific defence or a basis for reducing damages claimed, based on:

• limitation
 • consent (volenti non fit injuria)

• some form of exclusion of liability (subject, as appropriate, to principles of fairness under the Unfair Contract terms Act 1977)

• the claimant's own wrongdoing (ex turpi causa)

• necessity and self-defence

• contributory negligence

For more details on these concepts, see the Practice Notes:

• Defences to Tort claims

• Limitation—tort claims

• Limitation—Defamation

• Limitation—professional negligence claims

• Limitation—Latent damage

• Excluding and limiting liability for misrepresentations

Multiple tortfeasors and contribution

Where more than one party is potentially liable for any tortious damage caused, then the Civil Liability (Contribution) Act 1978 (CL(C)A 1978) may apply.

There are different categories of tortfeasor (party responsible):

• joint tortfeasors: the parties are responsible for the same damage through the same tortious act

• several tortfeasors: the parties are responsible for causing the same damage through different tortious acts

• several tortfeasors: the parties are responsible for causing different damage through different tortious acts

There are differences as a result as to how a claim should be pleaded and how you might settle a claim against a number of tortfeasors, depending on whether their liability is joint or several.

Under CL(C)A 1978, s 1, a defendant can seek a contribution from their co-tortfeasor for any remedy imposed on them. When and to what extent such a contribution can be sought is governed by the
provisions of CL(C)A 1978.

Where a contribution claim is pursued there needs to be consideration of what amounts to the ‘same’ damage, how damages should be apportioned amongst tortfeasors, the impact of settlement or
judgment in the primary claim, whether there are any jurisdiction arguments, the impact of limitation and exclusion of liability, the relevance of contractual indemnities and the appropriate costs orders
where there are multiple tortfeasors.

For more detailed guidance on joint and several liability in tort, see Practice Notes:

• Joint, several, and joint and several liability (which considers these issues on liability from both the tortious and contractual perspective)

• Multiple tortfeasors—liability issues

For guidance on when and how to seek a contribution, see Practice Notes:

• Contribution claims under Civil Liability (Contribution) Act 1978

• Making and responding to an additional claim under CPR 20—claims for a contribution, indemnity or other remedy

Equitable remedies in tort claims

The two forms of equitable remedy most commonly granted in tort claims are injunctions and equitable damages.

An injunction may be granted in relation to all forms of tortious conduct where it is feared a tort will be committed or where one has been committed and loss is on-going. The court can direct a party to:

• refrain from doing something (a prohibitory injunction), or

• do something (a mandatory injunction)

Such injunctions are discretionary and can be obtained on an interim basis where appropriate.

A court may grant damages where an injunction could have been granted but it elected not to. The jurisdiction is exercised sparingly.

For further guidance, see: Interim and final injunctions—overview, including Practice Note: Injunctions—key and illustrative decisions.

Neighbour disputes arising in tort (nuisance)

Tortious liability, in the form of claims in nuisance whether arising as:

• private nuisance—interference with the use or enjoyment of land that causes injury in relation to an ownership right in that land

• public nuisance—unlawful acts or omissions which are so widespread in range and indiscriminate in their effect that they obstruct, damage or inconvenience the rights of the community

• the rule in Rylands v Fletcher—strict liability imposed where an abnormal or non-natural activity on the defendant’s land results in an escape of something harmful onto a neighbour’s land
References:
Rylands v Fletcher (1866) LR 1 Exch 265, [1861–73] All ER Rep 1

is a particular feature of relationships between neighbours and is therefore dealt with in our Property Disputes module. For further guidance, see: Neighbour disputes—overview.

Tort claims arising out of bailment

Bailments arise in a wide range of circumstances. All that is necessary is for one party (the bailee) to take voluntary possession of goods belong to another (the bailor) in circumstances where the
bailee does not gain ownership of the goods.
Usually, bailment arises out of contract or in circumstances where the relationship of the parties is governed by contract. This means that, usually, the bailment and liability of the parties to the bailment
will be governed by the express and implied terms of the relevant contract.

However, bailment can arise without the need for a contract, and in those situations there exist tortious rights and liabilities distinct from those arising in contract. Claims in relation to bailed goods
frequently arise in circumstances where it is (or could be) said that the bailee has been negligent in relation to the care of the goods. Moreover, the Torts (Interference with Goods) Act 1977 defines
‘wrongful interference with goods’ as including ‘negligence so far as it results in damage to goods or to an interest in goods’. Typically, a bailor’s cause of action will be in tort where the bailed goods are
returned to them in a damaged condition.

For further guidance (in both the commercial and tortious context), see Practice Note: Bailment.

Precedents—claims in negligence
We provide a selection of Precedents for negligence claims—both bespoke and from those contained within various of our Atkins Court Forms volumes. You can also find Precedents for professional
negligence claims in the Precedents pod of our Professional Negligence Claims overview, see: Professional negligence claims—overview.

Bespoke precedents for negligence claims

We provide a number of bespoke and generic Precedents which may be adapted for your use in respect of bringing or defending a negligence claim:

• Letter of claim—product liability claim against drinks manufacturer by third party

• Defence (civil claim generic)

• Defence and counterclaim (civil claim generic)

• Reply (civil claim generic)

Precedents from Atkins Court Forms for claims in negligence

• Defence: plea of voluntary assumption of risk (volenti non fit injuria): Atkins Court Forms (38(1)) [319]

• Defence: plea of consent: Atkins Court Forms (38(1)) [321]

• Defence: plea of contributory fault: Atkins Court Forms (38(1)) [323]

• Defence: plea of necessity: Atkins Court Forms (38(1)) [327]

• Defence: plea of illegality (ex turpi causa): Atkins Court Forms(38(1)) [328]

• Defence: plea of exclusion and limitation of liability: Atkins Court Forms (38(1)) [329]

• Defence of release or waiver: Atkins Court Forms (38(1)) [332]

• Defence: plea of limitation period: Atkins Court Forms (38(1)) [333]

Precedents from Atkins Court Forms for breach of statutory duty claims

• Claim form: breach of statutory duty: financial services: Atkins Court Forms (38) [301]

• Particulars of claim: breach of statutory duty: financial services: Atkins Court Forms (38) [302]

• Defence: breach of statutory duty: financial services: Atkins Court Forms (38) [303]

Precedents from Atkins Court Forms for contribution and indemnity claims

• Additional claim form claiming contribution, indemnity or other relief or remedy: Atkins Court Forms (29(2)) [118]

• Notice of contribution or indemnity (Form PF22): Atkins Court Forms (29(2)) [119]

• Notice by the first defendant claiming a contribution or indemnity from the second defendant: Atkins Court Forms (29(2)) [120]

• Defence to notice by the first defendant for a contribution or indemnity from the second defendant: Atkins Court Forms (29(2)) [121]

Overviews

Maintained

Found in:
Dispute Resolution
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