Foundation Law 2013/14

Foundation Law 2013/14

Lecture 10
The Law of Tort (1)

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 torts Torts
Crimes
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

Defendant will be sued in the civil

courts

The defendant faces criminal

charges

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

Standard of proof- balance of

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 tort
2. The defendant owed the claimant a duty of care
3. The defendant breached the duty of care; and
4. 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 claimants property

Example: Tom crashes into Jerrys 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 Toms negligence, he could recover his
consequential economic losses

Pure Economic Loss (PEL)

Pure economic loss occurs where the defendants 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 Jerrys 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 neighbourthe 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 claimants 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

1.
Was the damage suffered by the claimant a reasonably
(1990)
foreseeable consequence of the defendants 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 doesnt 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 exercisethis 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 defendants
breach caused the claimants damage
The test for causation is the but for test
In other words, but for the defendants 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 defendants
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