Law

of Tort

Dene a Tort? (J08 Q5)

There is no clear-cut denition of a tort. (it has been variously dened)
- A civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the
breach of a contract or the breach of a trust or other equitable obligation.
Salmond (the well known author on torts)
- A civil wrong other than a claim for breach of contract; and for which a right of civil action for damages may arise.
- The basis of liability in tort is that no one has the right to cause injury or damage to a person or his property.
- The person suering the injury or damage has the right to claim monetary compensation (damages) from the party
who caused such injury.
- Trespass, negligence and defamation are example of torts.

Denition
Blyth v Birmingham Waterworks Co
Tort of Negligence
The omission to do something
(D09 Q8)
which a reasonable man, guided
upon those considerations which
In order to succeed in an action in the tort of negligence,
ordinarily regulate the conduct
a plainti is required to prove the following.
of human aairs would
do, or doing something
1. that the defendant owed the plainti a duty of care;
which a prudent and
2.that the defendant breached that duty of care; and
reasonable man would
3.that the plainti suered damages as a consequence of that breach.
not do.

Duty of Care
- A person has a duty to take
reasonable steps to avoid acts or
omissions which he can reasonably
foresee are likely to injure his
neighbour.
- Neighbour
Lord Atkins - persons who are so
closely and directly aected by the
defendants act or omission that the
defendant must have him in mind
when he does the act or omission in
question.
Donoghue v Stevenson

Breach of Duty of Care

Resultant Damage

- Reasonable Mans Test

A breach of the duty of care is said to
occur when the defendant has failed
to do what a reasonable person
would have done, or has done
something which a reasonable
person would not have done.

- Whether or not the defendant has
breached that duty is a matter of fact
to be determined by the court, in the
particular circumstances.
Bourhill v Young

- The plainti has to further prove that

it was because of the breach of duty
by the defendant that he (plainti)
has suered damages.

- The damages must also be
reasonably foreseeable and not too
remote.
The Wagon Mound

- Example - a road user owes other

road users a duty of care. He has the
duty to avoid acts or omission which
he can reasonably foresee will cause
injury to other road users.

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Duty of Care

Lord Atkins Test

- Neighbour
Lord Atkins - persons who are so
closely and directly aected by the
defendants act or omission that the
defendant must have him in mind
when he does the act or omission in
question.
- Neighbour Test
Lord Atkins Test - one must take
reasonable care to avoid acts or
omissions that one can reasonably
foresee would be likely to injure
ones neighbour.
Donoghue v Stevenson

Anns Test
(2 Stage Test)
(Lord Wilberforce in Anns v Merton London
Borough Council)

- First Stage
It must be determined whether there
is a sucient relationship of
proximity or neighbourhood
between the alleged tortfeasor and
the person who has suered the loss.
If it can be ascertained that the
tortfeasor should have foreseen that
carelessness o his part may cause
damage to the other party, prima
facie, a duty of care would be
established.

- Second Stage
if the answer to the above is in the
armative (yes), the court then has
to examine whether there are any
considerations that may negate,
reduce or limit the scope of the duty,
or the group of persons to whom the
duty will be imposed.

Caparos 3 Part Test

- Foresight
The damage was reasonably
foreseeable.
- Proximity
There is close and direct relationship
of proximity between the plainti
and the defendant.
- Fairness
The circumstances as a whole must
be such that it is just and equitable
for the imposition of a duty of care.

Caparo Industries Plc v Dickman

(In this case, some shareholders of a public co. bought
more shares in the co. and later made a successful
takeover of the co. in reliance on the audited accounts,
which showed substantial prots for the co. However,
in fact the co. had suered substantial loss. In an
action against the defendants (auditors), the House of
Lords held the defendants not liable)

1. The auditor of a public co.s

accounts owes no duty of care to a
member of the public at large who
relies on the accounts to buy shares
in the co.
2.An auditor also owes no duty of care
to an individual s/holder in a co. who
wishes to buy more shares in the
co.. The auditors duty was to the
body of s/holders as a whole.
3.There will not be a relationship of
proximity if the maker of the
statement has no reason to
anticipate that his statement might
be relied on by strangers for anyone
of a variety of dierent purposes.
4.A relationship of proximity can exist
if the maker of the statement knows
that his statement will be
communicated to the plainti,
whether as a specic individual or as
a member of an identiable class.
5.Proximity is established if the
statement is made in connection to
a particular transaction and the
(identiable) plainti is very likely to
rely on the statement for the
purpose of deciding whether to
enter into that transaction.

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Breach of Duty of Care

Prove that the defendant was negligent.

The Reasonable Mans Test - Blyth v Birmingham Waterworks Co

Negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human aairs would
do, or doing something which a prudent and reasonable man would not do.
For example, the test in determining the standard of care of a doctor -
Bolam v Friern Hospital Management Committee
Professionals will be judged by the standard of the ordinary skilled man exercising and
professing to have that special skill.

Standard of Care
1. The level of Intelligence and Knowledge
- A reasonable man is sometimes described as the man on the street/ man on the Clapham Omnibus
2.Professions and Skills
- A professional will not be deemed to be negligent if he has taken steps that would normally be taken by others who are
in the same position (or reasonable person with the relevant skills).
- Ang Tiong Seng v Goh Huan Chir (Std of a sinseh doctor; however, in this case, the sinseh was held liable as he was careless in his treatment of the plainti)
- Whitehouse v Jordan (error of clinical judgement is not necessary indicative of negligence; not done on purpose)
- Wilsher v Essex Area Health Authority (std of care should be related to the post of the defendant and not his individual level (jr/sr) of experience)
3.Practice and knowledge at the time of the breach
- The standard of care of a professional is judged at the knowledge available at the time of the breach.
- Roe v Mister of Health (the CoA held that the std of care must be based on the current knowledge at the time of the alleged breach and not at the time of trial)
4.Probability of the injury occurring
- It is presumed that a reasonable man takes greater precautions when the risk of injury is high.
- Boulton v Stone (A person must only take reasonable steps against risks that may materialize)
- Glasgow Corporation v Taylor (A local authority was held negligent when children ate poisonous berries in a park. A warning notice was not considered to be
sucient to protect children.)

5.Seriousness of the injury

- A higher degree of care would be imposed in cases which involves the young, old and sickly as they are more prone to
more serious injury than an able bodied person.
- Paris v Stepney Borough Council (Employer had a duty to take reasonable care to ensure the safety of the working environment)
6.Issues of Practicality and Cost
- Eliminating harm must be proportional to the danger.
- Latimer v AEC Ltd (No breach, because the employer took the reasonable precaution -- buying sawdust to prevent slippery oor)
7.Social Benet
- If the defendants actions served a socially useful purpose then he may be protected from liability.
- (e.g. have to weigh - save 100 people, as a result injured 1 person..NEVER MIND ;) )
- (e.g. Police/Ambulance speed to save life and injured someone, cannot be sued)

8.Res Ipsa Loquitur - the facts speak for themselves

- Claimant does not have to prove defendant was negligent, rather, defendant must prove that the act was not negligent.
- The following Criteria must be satised before the maxim can be applicable (before plainti can rely on this maxim)
a. The accident must be such that would not normally happen without negligence.
b. The defendant must have had sole control of the thing which caused the accident
c. The exact cause of the accident must be unknown.
- Teoh Guat Looi v Ng Hong Guan
- Scott v London & St Katherine Docks Co.
- Mahon v Osborne (surgeon was required to prove that leaving a swab inside a patient after an operation was not negligent)
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Resultant Damage

Claimant must prove that as a natural consequence of

the breach, the claimant suered damage
The plainti will have to prove that the damage or injury was
caused by the breach of the defendant of the duty of care.

Causation in Fact

Causation in Law

Claimant must prove causation

But-for Test
- The damage would not have occurred if not for breach
of duty of the defendant.
- Barnett v Chelsea & Kensington Hospital Management
Committee (a casualty doctor sent a patient home without treatment and

Remoteness
Remoteness of Damage
- Direct Consequence Test
Once a person has committed a tort, he will have to
bear all the losses that arise as a consequence thereof.
Re Polemis and Furness, Withy & Co Ltd. (Held - the Charterers

the patient died of arsenic poisoning. Held - While the doctor was negligent,
the negligence did not cause the patients death (he would have died anyway))

- Swamy v Mathews & Anor (Held - the paralysis was not caused by the
negligence of the doctor and that the doctor was not negligent.)

Multiple Cause Test

- Courts must decide on the facts if the negligent act was
the one most likely that caused the injury. If unable to
do so, defendant will not be liable.
- Wilsher v Essex Area Health Authority (there were 6 main causes
leading to the blindness of the plainti. It was very dicult to ascertain the real
cause of blindness. THe burden lies with the plainti to show the court that the
defendants breach caused the illness)

- McGhee v National Coal Board (Held - it was sucient for the

plainti to prove that the defendants breach had materially increased the risk
of injury to him)

Concurrent Causes
- Sometimes 2 or more wrongful acts may result in
damage and the party responsible for each act will be
responsible for the whole damage. This is due to the
fact that act is is directly liable for the damage.
- Fitzgeral v Lane (D1 and D2 were held jointly liable)

were liable for all the loss which was a direct consequence of their negligence)

- Reasonable Foresight Test

The plainti will be entitled to damages only if the
damage suered is, as a matter of law, was not too
remote from the original wrongful act.
Wagon Mound (Privy Council held - the defendants were not liable
because the damage was not reasonably foreseeable. i.e that the fuel oil
oating on water would catch re and destroy the plaintis wharf)

- Eggshell Skull Rule

(i) Types of Harm
- Tremain v Pike (The defendant was not liable as the damage that
materialized was dicult in kind to what was foreseeable)

(ii) Extent of Harm

- Vacwell Engineering Co. Ltd v BDH Chemical Ltd (Held -
the defendants were liable because the type of harm was foreseeable
and it was relevant that the degree of the explosion and the resultant
damage were unforeseeable)

- Smith v Leech Brain & Co (The defendant was held liable on the
principle that a tortfeasor has to take his victim as he nds him)

Intervening Acts
- Act of the Plainti
McKew v Holland, Hannen & Cubitts (The plaintis conduct was
unreasonable and was therefore a novus actus interveniens. It would unfair to
expect the defendant to pay for the further injuries that was occasioned by the
plaintis own rashness.

- Intervention by a 3rd Party

Scott v Shepherd (the defendant who threw a lighted squib into market
place and placed others in danger was found to be liable on the basis that the
initial act was cause by the rst defendant)

- Contributory Negligence
This is where the plainti negligently contributes to
their own injuries and the defendant will usually claim
the defense of contributory negligence.
Sayers v Harlow Urban District Council (Held - it was reasonable
for the plainti to have tried to escape, but she had been foolish in the way in
which she attempted to do so)

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Defenses to an Action for Negligence

Contributory Negligence
- The plaintis claim will be
subsequently or proportionately
reduced if the damage suered was a
result of negligence by the plainti.
- Section 12 of the Civil Law Act 1956
where any person suers damage as
the result partly of his own fault and
partly of the fault of any other
person or persons, a claim in respect
of that damage shall not be defeated
by reason of the fault of the person
suering the damage, but the
damages recoverable in respect
thereof shall be reduced to such
extent as the Court thinks just and
equitable having regard to the
claimant's share in the responsibility
for damage.
- 3 Main Elements
a. The plainti has a duty of care for
himself to act reasonably so as to
avoid damage to himself.
b. The plainti had breached this
duty by acting unreasonably.
c. The act or omission which was
reasonably foreseeable must be
the cause of his injury.

Volenti Non Fit Injuria

- No wrong can be done to a person
who voluntarily consents to it
3 Main Requirements
a. Consent to the risk.
- If the plainti consented to the
risk, the defendant should not be
liable as the defendants breach
appears to be justied.
- ICI v Shatwell (The claimant and his brother
disregarded the employers safety rules while
using detonators that resulted in injury and the
court upheld the defence of volenti non t injuria)

b. Consent must be voluntary.

- The plaintis consent must be
free and voluntary.
- Bowater v Rowley Regis
Corporation (Held - a person is said to be

Inevitable Accident
- The plainti has to prove that the
defendant had acted unreasonably.
- The burden of proof is on the
defendant to show that he has acted
reasonably under the circumstances
and the accident would have
happened anyway as the damage is
not one that is foreseeable nor can it
be avoided by taking any reasonable
precautions.
- Stanley v Powell (the D, who was a member of
a shooting party red at the bird and the bullet
glanced o a tree and hit the P. However, the court
held that the defendant was not liable as the
accident was inevitable)

voluntarily assuming the risk if he is in a position

where he has a choice. He must have full
knowledge of the circumstances.)

c. The plainti must have full

knowledge of the risk.
- How far does knowledge implies
consent?
- Dann v Hamilton (Held - Dann was aware of
the potential danger of an accident but she had
not by virtue merely of her knowledge, assented
to it.)

- Jones v Lovox Quarries Ltd

(The plainti disobeyed his employers instructions
by riding on the back of a traxcavator.)

- Sundram a/l Ramasamy v Arjunan a/l

Arumugam & Anor
(The court found the D liable in negligence because if
he had been driving at a slower pace he could have a
voided running over the plaintis leg)

- Gough v Thorne
(Lord Denning - A very young child cannot be guilty of
contributory negligence. Unless he or she is of such
an age as reasonably to be expected to take
precautions for his or her own safety.)

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