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Lecture 10The Law of Tort

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Learning Outcomes:• Understand what is meant by a tort and distinguish between a tort and

crime;

• Be able to outline the different types of torts and the expected standard of behaviour set out under each one;

• Explain the tort of negligence and the four key elements of the tort of negligence;

• Distinguish between the different types of damages and specifically pure economic loss and consequential economic loss;

• Apply legal principles to given facts and demonstrate criticality & analysis when answering fact based questions; and

• Analyse case law and be able to apply case law in a persuasive manner to hypothetical case studies.

What is the Law of Tort?• The law of tort is a branch of the private (civil) law

• A tort is a “civil wrong”, which unlike a crime which is a wrong committed against the state, is a wrong committed against an individual

• Liability in tort comes from either a breach of a duty owed by members of society towards each other ( for example, all road users owe other road users a duty of care) or the infringement of a right of another person (for example, everyone has the right to privacy and therefore, a newspaper may be liable if it publishes something of a sensitive/private nature.)

• The law of tort therefore, protects the rights & freedoms of individuals, their property and reputation

• The rights and duties of individuals have been developed by the courts through case law ( for example, duty of care has been developed following the case of Donoghue v Stevenson (1932)). However, there are also Acts of Parliament which also set out rights and duties ( for example, the Occupiers’ Liability Act (1957))

Key differences between crimes and tortsCrimes Torts

A wrong against the state A wrong against an individual

Case will usually be started by the state Case will be started by the individual affected (the claimant)

Defendant will be prosecuted in the criminal courts

The defendant faces “criminal charges”

Defendant will be sued in the civil courts

A civil action will be brought against the defendant

If guilty the defendant will be prosecuted/punished

If liable the defendant will have to pay damages/compensation to the claimant

Main purpose of the criminal law is to maintain law & order and to protect the public

The main purpose of the law of torts is to provide the individual who has a suffered from an infringement of a right/duty, with a remedy to enforce their rights

Branch of the public law (criminal law) Branch of the private (civil) law

Law of torts largely developed through common law/case law

Standard of proof- “beyond reasonable doubt”

Burden of proof- rests with the prosecution

Standard of proof- “balance of probabilities”

Burden of proof-rests on the claimant

Types of Torts• There are different types of torts recognised by the English law

and each tort sets out a certain expected standard of behaviour

• We will be looking at the following torts on the course:

The Tort of Negligence

The Tort of Defamation

The Tort of Trespass (both against the person and property)

The Tort of Nuisance

Fault Based Liability• Tortious liability requires the defendant to be at fault in some way.

However, this does not necessarily have to be intentional

• What does fault mean?

• The definition of fault is wide but generally it means an act (or omission) committed by the defendant which causes the defendant damages

• Therefore, the law of torts serves two main purposes…….

1.Compensation: the law of torts ensures that those who are injured/suffer damages, receive compensation

2.Deterrence: the threat of compensation (like the threat of punishment in the criminal law) encourages individuals to behave more responsibly

The Tort of Negligence

What is negligence?

• Dictionary Definition: “lack of proper care and attention”

• Legal Definition: “ the breach of a legal duty of care, which results in damage to the claimant undesired by the defendant”

• Both definitions provide that negligence involves the claimant receiving a sub standard level of care

The 4 elements of the tort of negligence:• The following four elements must be established to prove negligence:

1. The claimant suffered a type of damage recognised by the law of tort2. The defendant owed the claimant a duty of care3. The defendant breached the duty of care; and4. The breach caused the claimant reasonably foreseeable damage

NB: the burden of proof will always be on the claimant!

Damages

•Physical damage

•Consequential economic loss

•Pure economic loss

•The claimant must prove that the damage s/he has suffered is recognised by the law of tort

Physical Damage• There are two types of physical damages:

• Injury to the claimant (mental and physical); and• Damage to the claimant’s property

• Example: Tom crashes into Jerry’s car, as a result of which Jerry suffers from whiplash (back pain) and his car is also severely damaged

Consequential Economic Loss (CEL)• When the claimant suffers financial loss as a result of physical

damage, this is known as consequential economic loss

• Example: If Jerry, who from the earlier example suffers a whip lash, is unable to go to work and therefore, looses income and furthermore, occurs medical costs. Provided that he can establish that the damage was caused by Tom’s negligence, he could recover his consequential economic losses

Pure Economic Loss (PEL)• Pure economic loss occurs where the defendant’s negligence causes nothing

else but financial loss

• Example (1): Jerry purchases a radio from Tom. When Jerry returns home and tries his new radio, he discovers it is not working. Jerry cannot claim damages from Tom because the only damage Jerry has suffered is financial loss: the money wasted on the radio. Although Jerry cannot claim compensation under the law of torts, he can however, claim under the law of contract.

• Example (2): Tom negligently cuts the cable that provides electricity to Jerry’s Pizzeria. Without any electricity, Jerry is unable to make or sell any pizza. Jerry cannot claim damages from Tom because the only damage Jerry has suffered is financial loss: the profit that could have been made by selling pizzas.

• As a general rule, the law of torts DOE NOT recognise PEL

• However, there are certain situations whereby the claimant can receive compensation for PEL (Hedley Bryne v Heller (1963))

Duty of care• The claimant must prove that the defendant owed him a duty of care

• How is duty of care established?

• DUTY OF CARE: Donoghue v Stevenson (1932)

Donoghue v Stevenson (1932)• Lord Atkins:

“ you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law 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 in question”

• Therefore, a duty of care is owed to our “neighbour”- the person who is most closely and directly affected by our actions

• This is known as the “neighbourhood principle”

Caparo Industries Plc v Dickman (1990)

• This is the current test for establishing duty of care and this test is much wider than the neighbourhood test

• When a judge is presented with a case involving the tort of negligence, the following approach will be adopted. Firstly, the judge will consider the material facts of the case and consider precedents (remember the doctrine of precedent?) to see if a duty of care has already been established relevant to the claimant’s situation

• If the judge is unsuccessful, he will only impose a new duty of care if the following three stage test is satisfied:

Caparo Industries Plc v Dickman (1990)1. Was the damage suffered by the claimant a reasonably foreseeable consequence of the defendant’s actions?

The damage must be foreseeable, if damage is not foreseeable then there is no duty of care

Bourhill v Young (1943) Langley v Dray (1998)

2. Was there a relationship of proximity/neighbourhood between the claimant and the defendant?

Proximity doesn’t mean being physically close or being related but instead refers to the defendant having an amount of control over and responsibility for the dangerous situation created

3. Is it fair, just and reasonable for the law to impose a new duty of care in the situation?

McFarlane v Tayside Health Board (1999)

Breach of Duty of Care• The claimant must establish that the defendant breached the duty of

care owed to the claimant

• A defendant breaches a duty of care when s/he falls below the standard of care that was expected from the defendant

• The standard of care therefore, is the level of care which a reasonable or prudent person would exercise…………this is known as the “reasonable man test”

• Therefore, in cases where the defendant is an expert, for example, a doctor or dentist, than the standard of care is the level of care to be expected from such an expert (the “reasonable doctor” or the “reasonable dentist”.)

• Nettleship v Weston (1971)

Risk not known:• If the risk is not known to anyone at the time of the injury, the

defendant cannot be held to have breached his duty of care.

• Roe v Minister of Health (1954)

Small risk:• Bolton v Stone (1951): held not to be negligent

Causation• The fourth and final element of the tort of negligence requires the

claimant to prove that the defendant’s breach caused the claimant’s damage

• The test for causation is the “but for test”

• In other words, but for the defendant’s negligent act, would the claimant have suffered damage?

• Barnett v Chelsea & Kensington Hospital Management Committee (1968)

Causation-Remoteness• There has to be a causal link between the defendant’s negligent act

and the damage/s suffered by the claimant

• This is known as the concept of remoteness

• The Wagon Mound (1961)

• Smith v Leech Brain & Co (1962)

Res ipsa loquitur

•The general rule is that the claimant must prove all the three elements of negligence. That is, duty of care, breach of duty and causation. However, sometimes the facts are enough to prove the defendant negligent

•This rule of evidence is called res ipsa loquitur- “The facts speak for themselves”

•The claimant has to show that the defendant was in control of the situation, which caused the claimant injury and the injury was more likely than not to have been caused by negligence

•Scott v London & St Katherine Docks (1865)

Contributory Negligence• Contributory negligence means that the claimant contributed or was

partly to blame, for the damages suffered, as a result of some act or omission on their part

• Froom v Butcher (1976)

• Law Reform (Contributory Negligence) Act 1945: The claimant can still make a claim against the defendant but the amount of damages he receives will be “apportioned” (reduced) by the amount the claimant was to blame

Preps. For Seminar 10

• Hand-out:

• Reading List• Jacqueline Martin, “GCSE Law”, 5th Edition, Chapter

17- Law of Tort: Introduction & pages 130-137 of Chapter 18-Law of Tort: Negligence

• List of cases

• Preparatory Questions