Tort Law

What is the definition of a tort?

A tort is a civil wrong, independent of contract or trust, for which the usual remedy is an award of damages in a civil action.

Why is the tort of negligence particularly relevant to professional engineers?

A professional engineer owes a duty of reasonable care and skill, and incompetence or carelessness causing damage to any party can result in liability in tort.

How does the aim of damages in the tort of negligence differ from the aim in contract law?

In tort, damages aim to restore the claimant to the position they were in before the tort occurred, whereas in contract, damages aim to put the claimant in the position they would have been in had the contract been performed.

What are the five essential components required to establish the tort of negligence?

The five essential components are: a duty of care is owed, there is a breach of that duty, harm or damage is suffered by the claimant, causation links the breach to the harm, and the damage is not too remote.

What is the neighbour principle established in Donoghue v Stevenson (1932)?

You must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour, meaning persons who are so closely and directly affected by your act that you ought reasonably to have them in contemplation.

When will a court find that a duty of care exists?

A court will find a duty of care exists where precedent establishes it on similar facts, where analogy can be drawn to established duties, or where novel circumstances satisfy the Caparo three-stage test.

What is the three-stage Caparo v Dickman (1990) test for establishing a duty of care in novel situations?

The harm must be reasonably foreseeable, the parties must be in a relationship of proximity, and it must be fair, just, and reasonable to impose a duty of care.

Why are courts generally unwilling to impose a duty of care for pure economic loss?

Courts are unwilling because economic interests are primarily protected by contract law and imposing a duty risks indeterminate liability to an indeterminate class.

What is the main exception that allows a duty of care for pure economic loss?

A duty of care can arise for pure economic loss caused by negligent misstatement where a special relationship of trust and confidence exists, the risk is voluntarily assumed, and reliance is reasonable.

What factors do courts consider when determining a duty for negligent misstatement?

Courts consider the relationship between maker, recipient, and any intermediary, the size of the class affected, the purpose of the statement, the defendant’s knowledge, and whether reliance was reasonable.

What constitutes pure psychiatric injury for the purposes of a negligence claim?

Pure psychiatric injury is a recognised psychiatric illness, such as PTSD, that is not accompanied by physical injury.

What conditions must primary victims satisfy to claim for pure psychiatric injury?

Primary victims must be in the zone of physical danger where physical injury is foreseeable and the injury must relate to the accident or its immediate aftermath.

What are the four control mechanisms required for secondary victims to claim pure psychiatric injury?

Secondary victims must show that psychiatric injury was foreseeable in a person of ordinary fortitude, there is a close tie of love and affection, proximity in time and place to the accident or aftermath, and the injury was caused by sudden shock.

What is the objective test used to determine breach of duty?

The defendant’s conduct is measured against what a reasonable person in the defendant’s position would have done or avoided doing.

What standard of care applies to professionals exercising special skill?

The standard is that of the ordinary skilled person exercising and professing to have that special skill.

What factors are taken into account when assessing the reasonableness of precautions in the circumstances?

Factors include the probability of harm, the seriousness of potential injury, the cost and practicality of precautions, conformity with established practice, and the social utility of the activity.

How is the standard of care adjusted for children?

The standard is that which can objectively be expected of an ordinary child of the defendant’s age.

When can a sudden illness affect the assessment of breach of duty?

A sudden and unforeseen illness that impairs brain function and is unknown to the defendant can lower the standard of care expected.

Why is proof of actual damage essential in a negligence claim?

Proof of actual damage is essential because mere exposure to risk or asymptomatic changes do not constitute actionable harm.

What is the “but for” test for factual causation?

The harm would not have occurred but for the defendant’s negligence.

How do courts handle causation when multiple factors contribute to the harm?

The defendant is liable if their negligence materially contributed to the harm.

What is a novus actus interveniens and how does it affect causation?

A novus actus interveniens is a new intervening act that breaks the chain of causation between the defendant’s breach and the harm.

What is the test for remoteness of damage established in The Wagon Mound (No.1)?

The type or kind of damage must be reasonably foreseeable, even if the manner or extent is not.

What is the “thin skull” or “eggshell skull” rule?

The defendant must take the victim as they find them and is liable for greater harm caused by the claimant’s pre-existing vulnerability.

How does public policy influence decisions in negligence cases?

Public policy considerations allow courts to limit liability through the devices of duty, causation, and remoteness.

What is the defence of volenti non fit injuria?

The claimant voluntarily assumes the risk and consents (or is treated as consenting) to the defendant excluding liability.

What is the defence of illegality?

The claimant cannot recover damages if the harm arose from their own illegal act.

What is contributory negligence and its effect?

Contributory negligence occurs when the claimant’s own negligence contributes to the harm, resulting in a reduction of damages.

What is the primary aim of damages in the tort of negligence?

The aim is to restore the claimant, as far as money can, to the position they were in before the tort was committed.

What limitations apply to the award of damages in negligence?

The claimant has a duty to mitigate loss reasonably, cannot recover for unreasonable inaction or expense, and damages may be reduced for contributory negligence.

What principle was established in Donoghue v Stevenson (1932)?

The neighbour principle forms the foundation of modern negligence liability.

What test was introduced in Caparo Industries v Dickman (1990)?

The three-stage test determines whether a duty of care exists in novel situations.

What duty was recognised in Hedley Byrne v Heller (1964)?

A duty of care can arise for pure economic loss caused by negligent misstatement in a special relationship.

What standard was set in Bolam v Friern Hospital (1957)?

Professionals are judged by the standard of the ordinary skilled practitioner in their field.

What factor was decisive in Bolton v Stone (1951)?

Low probability of harm meant no breach despite foreseeable risk.

What principle was applied in Paris v Stepney BC (1951)?

Greater seriousness of potential injury requires higher precautions.

What does Barnett v Chelsea Hospital (1969) illustrate?

The “but for” test can negate causation even where breach occurs.

What remoteness rule was established in The Wagon Mound (No.1) (1961)?

Only damage of a foreseeable kind is recoverable.

What rule applies to primary victims in Page v Smith (1996)?

Psychiatric injury is recoverable if physical injury was foreseeable.

What controls were set for secondary victims in Alcock v Chief Constable (1992)?

Four strict control mechanisms limit claims for shock-induced psychiatric injury.