Tort

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Definition of a Tort

• A civil wrong

• Purpose is to compensate for wrongdoing done by one person

to another

Protects certain interests therefore Imposes duty on people not to

cause harms such as:

• physical harm
• property harm
• psychiatric injury
• economic loss
• harm to reputation

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Function, effect and the scope of the law of tort

1. Function - describes a standard of behavior everyone should

observe

2. Compensate the victim – damages or equitable remedies

3. Retribution against the tortfeasor – courts can impose

remedies

Also leads to
– Deterrance
– Accountability
– Improved standards

• Differs from contract as there is no prior agreement between

the parties. They may be total strangers to each other
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• Tort law has primarily been developed by
the courts i.e. common law, however there
are a number of torts where statute
creates duties….

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 EXAMPLES OF COMMON LAW OF TORTS

• Negligence
• Nuisance/Rylands & Fletcher
• Vicarious liability
• Defamation (partially statutory)
• Trespass
– Assault
– Battery
– False imprisonment
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Examples of some statutory torts:

•Consumer protection Act 1987

•Occupiers Liability Acts 1957/1984
•Animals Act 1971 – strict liability for
damage caused by animal with dangerous
tendencies

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 Negligence

• A fault based tort

Defined in Blythe v Birmingham Waterworks Co (1856) as failing to act in the way that a
reasonable man would have acted in such circumstances

Elements of the tort of negligence: duty of care, breach of duty, causation of damage

Example

A drove his car over the speed limit and failed to keep a proper lookout, as he was talking to
the passenger next to him. A’s car struck B a pedestrian, causing personal injuries to B.

Analysing this in terms of tort law:

• A owed a duty of care to B as one road user to another;

• A was in breach of this duty by failing to keep a proper lookout (i.e he was negligent);

• B has suffered damage caused by A’s negligence.

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 Did D owe a duty of Care to Claimant?

A duty is owed in some relationships i.e.

•Road users to all other road user

•Doctors/nurses/health professionals to
patients
•Employers to employees

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 The Neighbour Test - Duty of Care
• Donoghue v Stevenson [1932] – snail in
the bottle
• Narrow principle established – a
manufacturer owes a duty of care to the
consumer
• Wider test formulated a general principle to
govern the existence of a duty of care

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 Caparo Industries v Dickman [1990]

The claimants were shareholders in Fidelity plc and after the accounts were published
(which the defendants audited) they purchased further shares, ultimately making a take
over bid which was successful. They alleged that the accounts for 1984 should have
shown a loss of £465,000 rather than a profit of £1.3million

HELD: The defendant auditors owed no duty of care to the claimants. This was due to a
lack of proximity and because a company's annual accounts can be used for many
purposes, not just investment.

This case is important because it lays down the foundations of the current, modern
approach to determining the existence of a duty of care.

Lord Bridge is credited with detailing the three –stage test (the tripartite test)

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 Three-stage test
a)Foreseeability of damage i.e. what would a reasonable man
have foreseen could happen in this situation?

b)Sufficient proximity of relationship between the parties i.e. who

are my neighbours?

c)it must be fair just and reasonable to impose such a duty

(Policy considerations)

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 • Merely owing a duty of care is not enough to give rise to a liability.

Almost everybody owes a duty of care to

people every day- can you name some?

There must also be a breach of that duty

• A duty of care will be breached if the defendant does not take the care which a
reasonable person would take in all the circumstances

• This is an objective standard- Nettleship v Weston [1971]

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Are there any people or professions which require a
higher level of competence?

•Bolam v Friern Hospital Management Committee

[1957]

•Roe v Minister of Health [1954]

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 Did breach of duty cause damage?
• Types of damage law recognises as worthy of
compensation

• Cl has to prove on balance of probabilities that D’s

negligence caused damage

e.g. Barnett v Chelsea & Kensington Hospital Management Committee (1969)

A nightwatchman went to hospital complaining of stomach pains and

was sent away by doctor who refused to see him. He later died from
arsenic poisoning. Held: he would’ve died anyway due to arsenic
poisoning so doctors negligence was not the cause of his death

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 Complex duty cases – The Police

Hill v Chief Constable of West Yorkshire

[1988]
•Involved mother of last Yorkshire Ripper
victim – she sued police for failing to
arrest him before he murdered her
daughter as before her daughter’s death it
had been foreseeable the murderer would
kill again

What do you think of this claim?

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 Damages

• The purpose of tort damages is to put the injured party into the
position he or she would have been in if the tort had not been
committed.

• Where the loss consists of damage to goods, the amount of damages

will usually be the cost of repairing or replacing the goods.

Damages for personal injuries:

• Categorised into special damages and general damages.

• Special damages can be calculated exactly- usually agreed between
the parties- such as?
• General damages cannot be calculated- such as?

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 Defences
1. Acceptance/Volenti

S2(5) OLA 57/74 states that the occupier will have discharged
his obligation to the visitor if the visitor willingly accepts the
risk.

2. Contributory negligence may also apply

• The apportionment terms under the Law Reform

(Contributory Negligence) Act 1945 apply to occupiers
liability. Damages may be reduced if the visitor has failed to
take care for his own safety too.

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