basic principles of the law of tort

7/28/2019 Basic Principles of the Law of Tort

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Basic principles of the Law of Tort

Each student should understand the basic concepts of tort law including the terms, negligence, duty

of care, breach of the duty of care damage loss and injury strict liability, vicarious liability

remoteness of damage defences to an action in tort. Issues as to 'onus of proof' become important in

determining who has to prove what in the legal action and in the order in which they have to prove

them. As we are working within an adversarial system, the person making a claim ('plaintiff' in Australia -

the 'pursuer' in Scotland) might have to prove certain things before the other party (the 'defendant') is

called upon to establish others (defences)

Tort is a civil wrong for which the remedy is damages and is part of what is called the law of

obligations. It involves legal obligations from one person to another a person in this sense including

companies, corporations and other types of legal entities. The defining characteristic of this type ofobligation is that it is incurred without intention.

It is to be contrasted with criminal law which involves breach of duties, but where the breach is

enforced or acted upon by the state.

It is also to be contrasted with contract law and other types of law based up agreements where

obligations are undertaken willingly and with intention.

The earlier cases took the view that there were no obligations other than those entered into voluntarily

(contracts, land law etc), and those imposed by the state (criminal law).

Donoghue v Stevenson: Two ladies in Scotland were at a caf, drinking some ginger beer from an

opaque bottle (which means that you could not view the contents through the bottle). Some ginger beer

was poured into each of the glasses and consumed. When the lady went to pour out the remainder of

the ginger beer, something slimy and very unpleasant came out with it. It was said that there was a

decomposing snail in the bottle. It is possible that the lady who had purchased the ginger beer could

have sued the owner of the caf, as she would have had a contract with the caf for the purchase of the

ginger beer. However, she decided to sue the manufacturer of the drink instead.


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The manufacturer entered an initial objection to the law suit (called a demurer) stating that, even if the

facts as alleged by the lady were true (which was denied), there would still be no legal obligation from

the manufacturer to the consumer. There was no contract between them there had been so sale or

exchange between them the manufacturer had sold the beverage to the caf owner. So, the matter

went to court (on a demurer) to test out the legal objection. This procedure enabled the saving of time

and money on needless claims. If the objection was successful, then there would be no need to call

witnesses etc. If the objection was not successful, then the matter could be set down for trial, if that

were necessary.

On the hearing of the objection the court determined that there were duties which private individuals

owed to each other in the conduct of their day to day activities. The basic idea was that in going about

your daily activities, you should so conduct yourself that you do not cause damage or injury to other

people unnecessarily. That meant that you must act reasonably, to ensure that others are not hurt by

what you do.

The interesting thing about the snail in the ginger beer bottle case (Donoghue v Stevenson) was that it

will never be known if in fact there was a snail in the ginger beer. After having established the principle,

the matter was settled out of court, and no evidence or witnesses were called.

Of course, it could not be the case that every time someone is hurt or damaged, someone else will be

found to pay for it. Some types of damage are part of everyday living. If locusts eat your crop, or if there

is a recession, you may well lose money or goods, but there may not be any one to sue for it. In fact, the

whole point of the law of torts is to draw the dividing line between the types of losses you just have to

put up with, and those types of losses for which you can hold someone else responsible.

It is said that if you knew when you were doing something that if you were careless about the way in

which you went about it, so that if youd stopped to think about it you would have said to yourself that if

this goes wrong it could hurt or damage someone, then that realization is a key indicator of a principle

of responsibility called a duty of care.

It is often expressed the other way around it is said that a duty of care exists where it could have been

foreseen by a person that if they conducted themselves carelessly then harm or damage might be

caused to someone else. So, the duty of care depends upon the ability to appreciate that

unreasonable conduct might hurt or harm others.


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There is a principle of causation which means that there must be some proof that the acts undertaken

by a person did actually cause the damage which is being complained about. It is worth remembering

here David Humes idea of constant conjunction. The mere fact that two events occurred together

does not by itself establish that one was the cause of the other. I may have been tapping my foot whenit came on to rain, but that does not mean that the tapping of my foot caused the rain.

It can then be said that the principle of causation can bring about fascinating links between events

which are not normally thought of. A bit like, the butterfly flapped its wings in Mexico and an

earthquake occurred in India. Some would say that everything is connected to everything else. So we

now have to introduce an idea to cut off the philosophical connections between events.

The idea of something being foreseeable means that fanciful and remote connections to some

unreasonable conduct will not incur liability. This is called the principle of proximity. It is essentially a

pragmatic principle to limit the range of caused events for which one can be responsible. Bear in mind

that if there is no chain of causation, then there is no need to invoke the doctrine of proximity.

It follows from what has been said that where a person acts reasonably they will not incur legal

responsibility for damage incurred by others.

Where you act unreasonably then any damage which results from those acts, and which is incurred by

someone who you should have known might be hurt or damaged, might result in you having to pay

them for the costs which they incur as a result.

Most of the legal cases in tort therefore test out:

the duty of care and the standard of care in other words, what is reasonable and what is

unreasonable bearing in mind that judgments about those things may well change over time.

They will test out the principle of causation did your act actually cause the damage complained of? If

so, was the damage proximate to the act which caused it.


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It is often said that the burden of proof is on the person making the claim to establish that the harm

resulted from the actions of the person against whom the claim is made.

Barnett v Chelsea Hospital (1969) one way of doing this is to establish that but for the actions

undertaken the damage would not have resulted.

It is worth bearing in mind that when considering what it is reasonable for people to do to avoid harm to

others, one must consider not only what they did but also what they did not do. Damage can result from

acts or omissions.

In Blythe v Birmingham Waterworks Co (1856) it was said that Negligence is the omission to do

something which a reasonable man, guided upon those considerations which ordinarily regulate the

conduct of human affairs, would do, or doing something which a reasonable and prudent man would

not; Alderson B [Baron Alderson]

When determining what is reasonable, one must weigh up whether the person has made any claims to

the possession of special skills or abilities. If you employ a carpenter or electrician you would want them

to be judged by the standard of a reasonable carpenter or electrician. Nettleship v Weston (1971)

So, what class of persons might someone have a duty to? It could be virtually anyone depending upon

the circumstances. Donoghue v Stevenson referred to the neighbor principle.You must take

reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure

your neighbour.. that is, persons so closely and directly affected by my acts that I ought reasonably to

have them in contemplation. Lord Atkin.

It is fair to say that the concept of what a duty of care involves has developed exponentially in recent

times. Clearly, in the 19th C it was not thought to be a bad thing to have children aged 10 or 12 years of

age chained to machinery and working in factories where they had to inhale injurious fumes or to get

their hands and arms trapped in dangerous machinery. Nowadays it would not be tolerated. On theother hand, when someone falls off a cliff and then sues the local authority because there wasnt a

warning sign to say it was dangerous, we may be going too far in the other direction. There has to be a

balance between what one person or group has to do to safeguard the wellbeing of others and what

those others can be expected to do to look after themselves.


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Interesting areas we will look at in future lectures are the areas of novel damages claims. Why the law

has developed to exclude what are called pure economic loss claims, that is claims for financial loss or

damage which are not accompanied by some corresponding physical loss or damage.

The issue of negligent mis-statements and the reasonableness of imposing a duty and the issue of

forseeability of possible loss or damage.

The concept of vicarious liability is one which will be important. It involves the idea of one person being

responsibility for loss or damage being cause by another. For example, an employer may be liable for

loss or damage caused by an employee and interesting questions arise by way of defining the liability

and limited its scope. What counts and an employer and employee relationship, and what acts fall

within that relationshipactions in the course of employment.

So, to establish a claim we have to consider whether there is a duty, whether it has been breached and

whether it has caused damage.

Then we have to establish the scope of forseeability / remoteness.

We may need to consider whether the person making the claim might also have been at fault, whichintroduces the idea of contributory negligence.

Volenti non Fit Injuria - no injury is done to one who consents. We cant really have a law lecture

without introducing some Latin terms.

Time limits can also be important. If a person wants to claim against another in tort, they must do so

within a certain period of time.

The usual rule is that actions must be commenced within 6 years from the date the action accrued but

where personal injuries are involved the time is usually 3 years.


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The Uniform Defamation Acts in Australia require action to be taken within 1 year

basic principles of the law of tort

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