Torts Lecture 2

Mohammad Ata-ur-Rahman
 Intentional Torts
Intentional torts, as the name suggests, are legal wrongs that are committed on
purpose (as opposed to by accident or through carelessness). An intentional tort
occurs when the defendant acts with the intent to cause actual harm or offense to
another person (or at least the threat of harm or offense). . Intentional torts
include:
Battery – applies to almost any form of harmful or offensive contact, even when no
actual injury occurs.
Assault – definition varies by state, but usually includes any intentional act that
places the victim in reasonable fear of imminent harm (i.e. pointing a loaded gun
at someone).
False Imprisonment – occurs when one person intentionally restrains the movement
of another person (actually or constructively) without the legal right to do so.
This can occur when a security guard wrongfully detains a shoplifting suspect.
Trespassing – unlawful entry onto someone else’s property
Malicious Prosecution
Other Types of Intentional Torts
alienation of affection: a tort based on willful and malicious interference with the
marriage relation by a third party without justification or excuse
invasion of privacy: the wrongful intrusion by individuals or the government into private
affairs with which the public has no concern
Assault / battery
Wrongful Death
Trespass: a wrongful interference with the possession of property (personal property as
well as realty), or the action instituted to recover damages
continuing trespass: trespass that is not transient or intermittent but continues as long
as the offending object remains
trespass de bonis asportatis: an action brought to recover damages from a person who
has taken goods or property from its rightful owner
trespass on the case: an action brought to recover damages from a person whose actions
have resulted indirectly in injury or loss
trespass viet armis: trespass with force and arms resulting in injury to another's person
or property
Common Law Definition
Common law (also known as case law or precedent) is
law developed by judges, courts, and similar tribunals,
stated in decisions that nominally decide individual
cases but that in addition have precedential effect on
future cases.
Classification of Torts
There are basically three types of torts:
intentional torts;
negligence; and
strict liability.
Court Structure
How to Read a Law School Casebook

The Caption
The Case Citation
The Author of the Opinion
The Facts of the Case
The Law of the Case
The Disposition
Concurring and/or Dissenting Opinions
How to read a case citation
Common UK Abbreviations (1)
The Law Report Series
AC Appeal Cases
Ch Law Reports, Chancery Division
QB Law Reports, Queen's Bench Division
KB Law Reports, King's Bench Division
Fam Law Reports, Family Division
P Law Reports, Probate Division
Other commercial series
All ER All England Reports
BCLC Butterworths Company Law Cases
Cr App R Criminal Appeal Reports
Cr App R (S) Criminal Appeal Reports Sentencing
FSR Fleet Street Reports
ICR Industrial Cases Reports
IRLR Industrial Relations Law Reports
LLoyd's LR Lloyd's Law Reports
P & CR Property, Planning and Compensation reports
SC Session Cases (Scottish)
WLR Weekly Law Reports
Electronic Citations
Neutral Citations since Internet Reporting of Cases Started:
Consist of the year, the court abbreviation (for example
EWCA Civ) and then the case number

Sources:
Westlaw ( paid subscription),
Lexis Library (paid subscription) or
bailli (free resource)
British and Irish Legal Information Institute
http://www.bailii.org/
Examples of Electronic Citation
[YEAR] COURT ABBREVIATION CASE NUMBER
[2005] EWCA Civ 101 (this is the 101st case of 2005
in the Court of Appeal Civil division)
[2006] EWHC 101 admin(101st case of 2006 in the
High Court Administrative division)
[2003] UKHL (now SC) 5 (5th case of 2003 in the
House of Lords (now the Supreme Court)
Example of a US case citation:
Hebb v. Severson, 201 P.2d 156 (Wash. 1948)

In this example, Hebb and Severson are the parties in

the case. The case can be found in volume 201 of the
Pacific Reporter, Second Series beginning on page 156.
The case was decided by the Washington State
Supreme Court in 1948.
Case-Law in Pakistan
Pakistan Law Site
http://www.pakistanlawsite.com/
Pakistan Law Journal
http://www.pljlawsite.com/
http://www.keylawreports.com/
Pakistan Legal Abbreviations
Pakistan:
The All Pakistan Legal Decision (PLD), (1947-2005)
The Civil Law Cases (CLC), (1980-2005)
Pakistan Labour Cases (PLC), (1950-2004)
Pakistan Supreme Court Cases (PSC), (1985-2004)
Supreme Court Monthly Review (SCMR), (1968-2005)
National Law Report (NLR), (1996-2005)
Pakistan Annual Tax Decision (PTD), (1959-2004)
Pakistan Criminal Law Journal (PCr.LJ), (1968-2005)
Pakistan Law Journal (PLJ), (1981-2004)
Pakistan Annual Law Digest (PATD), (1972-2005)
Pakistan Law Reports (PLR), Vol-01-18 (1951-1968)
Case-Law in India
Supreme Court Decisions
www.courtnic.nic.in
All India Reporter (AIR)
Supreme Court Cases
Supreme Court Almanac, and
Judgments Today
Key-parts of Judgment
Ratio Decidendi: "the rationale for the decision".
The ratio decidendi is "the point in a case that
determines the judgment@ or "the principle that the
case establishes“

With a proper understanding of the ratio of a precedent,

the advocate can in effect force a lower court to come
to a decision which that court may otherwise be
unwilling to make, considering the facts of the case
Obiter dictum

"by the way“

"said in passing“
For the purposes of judicial precedent, ratio decidendi is
binding, whereas obiter dicta are persuasive only.
Donoghue v Stevenson
Donoghue v Stevenson
Donoghue (or McAlister) v Stevenson, [1932] All ER Rep
1; [1932] AC 562; House of Lords
Donoghue v Stevenson [1932] AC 562
Appellant: May Donoghue
Respondent: Stevenson, a manufacturer
Year: 1932
Court: House of Lords
Judges : Lords Buckmaster, Atkin, Tomlin, Thankerton, and
Macmillan
Country: United Kingdom
Area of law: Duty of care
Issue:
Is there liability in negligence for injury caused by another in
the absence of a contract?
Facts of Case
Donoghue v. Stevenson, also known as the ‘snail in the bottle case’,
is a significant case in Western law.
The House of Lords’ ruling in this case established the civil law
tort of negligence
In Scotland in 1928 Mrs May Donoghue given a bottle of ginger
beer, purchased for her by a friend.

The bottle was later discovered to contain a decomposing snail.

Mrs Donoghue suffered personal injury as a result. She

commenced a claim against the manufacturer of the ginger beer
Legal Opinion
Ratio

Manufacturers owe the final consumer of their product a

duty of care (at least in the instance where the goods
cannot be inspected between manufacturing and
consumption). There need not be a contractual
relationship, or privity, in order for the final consumer
to sue in negligence.
Ratio in Donoghue v. Stevenson
A person owes a duty of care to those who he can
reasonably foresee will be affected by his actions.
Donoghue v Stevenson [1932] AC 562 House of Lords

Lord Atkin:
"The rule that you are to love your neighbour becomes
in law you must not injure your neighbour; and the
lawyer's question " Who is my neighbour ?
The answer seems to be persons who are so closely and
directly affected by my act that I ought reasonably to
have them in contemplation as being so affected
when I am directing my mind to the acts or omissions
which are called in question."
Types of Torts
There are a variety of torts, which can broadly be broken into the
following three categories:
- Negligent torts
Negligent torts, as their name suggests, are torts that are caused by
the negligence of the tortfeasor, or person who commits the tort.
- Intentional torts
Intentional torts, also as their name suggests, are torts caused
intentionally by the tortfeasor.
Strict liability torts
Strict liability torts are torts where the law has determined that some
activities are so dangerous that an individual engaging in those
activities is liable for damages regardless of intent or negligence
resulting in harm. A common example is blasting with dynamite.
Elements of Any Negligence Tort

The modern law of negligence was established in Donoghue v Stevenson [1932] AC 562

In order to be successful in a negligence claim, the claimant must prove:

1. the defendant owed them a duty of care;

2. the defendant was in breach of that duty;

3. the breach of duty caused injury and;

4. the damage was not too remote (foreseeable)

Focus for Today: Negligence
Negligence is a type of tort

So what is a tort? “A civil wrong . . . for which a remedy may be obtained,

usually in the form of damages; a breach of a duty that
the law imposes on persons who stand in a particular relation to one another”
Negligence Defined
Defined: “The failure to exercise the standard of care that
a reasonably prudent person would have exercised in a
similar situation; any conduct that falls below the legal
standard established to protect others against
unreasonable risk of harm, except for conduct that is
intentionally, wantonly, or willfully disregardful of
others' rights”

Important characteristic of negligence – the defendant does not intend for the bad
consequences to result
How to Prove Negligence

The plaintiff needs to prove four elements by a preponderance

of the evidence
1. Duty
2. Breach of Duty
3. Causation (two parts)
a. Causation in Fact
b. Causation in Law
4. Damage that was not too remote
Intentional Torts vs. Negligence in Personal Injury Cases

Negligent Torts
Duty
Breach of Duty and Causation
Followed by Damages which may include:
medical expenses
lost wages
pain and suffering
property damage
Duty
Defined: “A legal obligation that is owed or due to
another and that needs to be satisfied; an obligation for
which somebody else has a corresponding right”

Example: If you drive a car, you have a duty to obey the rules of the road
The Duty of Care
Generally speaking, a person owes a “duty of care” to
those around him or her (i.e. a duty to act reasonably)

How is this duty of care determined?

– By an objective standard

When evaluating a person’s conduct, tort law asks – would a reasonable person
of ordinary prudence in the defendant’s position act as the defendant did?
Negligent Torts: Duty
Everyone has a duty to exercise due care all of the time. What
is due care?

Due care is the amount of care that a reasonable person

would exercise under the circumstances. What is a
reasonable person?

A reasonable person is not any real person or even the

average person, but an imaginary prudent person who
takes the precautions necessary to avoid harming another
person or their property.
Who is the Reasonable Person?
The reasonable person is a legal fiction

Typically, the jury is asked whether a reasonable

person of ordinary prudence in the defendant’s
position would act as the defendant acted
The reasonable person
considers: how likely a certain
harm is to occur, how serious
the harm would be if it did
occur, and the burden involved
in avoiding the harm
Negligence - duty of care
Duty of care refers to the circumstances and
relationships which the law recognises as giving rise to a
legal duty to take care. A failure to take such care can
result in the defendant being liable to pay damages to a
party who is injured or suffers loss as a result of their
breach of duty of care. Therefore it is necessary for the
claimant to establish that the defendant owed them
a duty of care. The existence of a duty of
care depends on the type of loss and different legal
tests apply to different losses. This lecture considers the
position in relation to personal injury and property
damage.
2 point neighbour test

The neighbour test for establishing a duty of care can be

broken down in to two requirements:

1. Reasonable foresight of harm

2. A relationship of proximity
 The Caparo test
or personal injury and property
Caparo Industries pIc v Dickman [1990] 2 AC 605
House of Lords
Caparo Industries purchased shares in Fidelity Plc in
reliance of the accounts which stated that the company
had made a pre-tax profit of £1.3M. In fact Fidelity had
made a loss of over £400,000. Caparo brought an action
against the auditors claiming they were negligent in
certifying the accounts.
 Held:
No duty of care was owed. There was not sufficient
proximity between Caparo and the auditors since the
auditors were not aware of the existence of Caparo nor
the purpose for which the accounts were being used by
them.
 (The Caparo test)
“What emerges is that, in addition to the foreseeability
of damage, necessary ingredients in any situation giving
rise to a duty of care are that there should exist between
the party owing the duty and the party to whom it is
owed a relationship characterised by the law as one of
"proximity" or "neighbourhood“.
 Torts vs Easements
A right of use over the property of another. Traditionally
the permitted kinds of uses were limited, the most
important being
rights of way and rights concerning flowing waters. The e
asement was normally for the benefit of adjoining land,
no matter
who the owner was (an easement appurtenant), rather
than for the benefit of a specific individual (easement in
gross).
 THE EASEMENTS ACT, 1882
(ACT NO. V OF 1882)
Dominant and servient heritages and owners. The
land for the beneficial enjoyment of which the right
exists is called the dominant heritage, and the owner
or occupier thereof the dominant owner; the land on
which the liability is imposed is called the servient
heritage, and the owner or occupier thereof the
servient owner.
Easements Made Simple
Assignment
Write Paragraph About Alcock & ors v Chief Constable of
South Yorkshire [1992] AC 310 House of Lords
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