Tort Law

Tort

• a civil wrong for which law provides a remedy that corrects it

• Civil wrongs that go beyond tort (breaches of contract and equitable negotiations)

Tort law

A collection of wrongs

Torts -

1. Negligence

2. Harassment under Protection from Harassment Act 1997

3. Trespass to the person (battery, assault, false imprisonment)

4. Private nuisance

5. Defamation (libel, slander)

6. Publication of private information and images

Protected interests -

1. Personal property, or economic interests from damage

2. Freedom of harassment

3. Bodily integrity and safety, self-determination

4. Relevant interests in land (use and enjoyment of easements)

5. Reputation

6. Privacy in respect of information and images

Forward-looking elements

• prospective

• Seeks to protect an individual’s interests to prevent or deter risks or harm that could happen

Backward-looking elements

• retrospective

• Considers what has happened and already been done and responds with the provision of compensation and the distribution of losses

Corrective justice

• Defendant is liable to remedy the claimant’s losses because the defendant directly caused them to suffer it due to their actions

• Rests on the idea of individual responsibility

• Offers a good reason for compensating victims

Compensation

• Putting the victim back in the position they were in before the wrongful conduct

• Pay damages

• Role of insurance

• Is there a culture of claim - social responsibility heroism act 2015

Deterrence

• Regulating behaviour and developing a response to the risk of harm

• People and businesses do this to avoid liability

• Forward looking elements

• Risk aversion practice

• Weakened because of insurance

  Can be possible when insurance companies require compliance or meeting of standards before providing it

Vindication

• Claims version of events are false

• Inquiry + publicity

• What really happened

• Lack of cooperation between parties

Human Rights Act 1998

• Introduced the European Convention on Human Rights (ECHR) into domestic law

• Enables individuals to bring a claim against the state - to hold them liable in case of violations

• Imposes a duty on the state to comply with these rights

• ECHR involvement in deterring the existence and scope of liability in court tort decisions

Influence -

• created free standing HR claims where rights have been violated by a public authority

• Developed new torts in relation to the law of misuse of private information

Negligence

• Liability attached to people who fall below a legal standard of care

• An injury or loss is caused to the injured party by the wrongdoer’s failure to keep a legal duty to take reasonable care and provides a remedy (usually in the form of damages)

• Only proven when the harm is as a result of the defendants breach of duty

• Harms suffered needs to be a legally recognised one

• Equation - duty of care + breach of duty + causation - defences = negligence

• Defendant owed claimant a duty of care - d breached that duty - d’s breach caused claimant harm/loss - c’s loss is actionable damage - the loss is not too remote - no applicable defences

requires all these elements to be successful

Landmark case - Donoghue v Stevenson - before this no general legal principle of negligence in law, this case fully articulated that definition

Donoghue v Stevenson [1932]

Facts -

• D consumed a ginger beer bought from a friend where remains of a decomposed snail was found inside of the bottle

• D suffered from shock and gastro-enteritis - wanted compensation from Stevenson (manufacturer)

Claim -

• Stevenson negligent in the production of the beer bottle

• Unable to sue directly as there was no contractual or legal relationship

• Exceptional circumstances found that a duty of care was still recognised to exist

Judicial outcome -

• 3/5 lords agreed to the legal claim

• Settled out of court - unestablished whether there was an actual snail

Importance -

• Overruled Winterbottom v Wright [1842] - duty of care could not extend beyond a contract

• Established a single universal requirement to take reasonable care - Lord Atkin’s neighbour principle (did not mention the way that damage may be caused)

• Heaven v Pender [1883] - Lord Esher expanded on this grounding the concept in foreseeability that an individual must take reasonable care to avoid injuring those they believe to be foreseeable

• Courts reluctant to follow this statement due to the concern of exposing people to virtually limitless liability

• Would make commercial activity economically dangerous

The neighbour principle - Lord Atkin

• individuals to take reasonable care to void acts or omissions which can reasonably foresee would likely injure your neighbour

• Neighbour - any people who are closely and directly affected by the act that you ought to contemplate as being so affected

• Judiciary previously acting cautious when imposing liability

Caparo test (Caparo Industries PLC v Dickman [1990]

Facts -  

• C bought shares in Fidelity PLC, relying on an audit into the company's financial statements carried out by the defendant  

• Accounts were inaccurate 

• C sued in negligence 

 

Judicial outcome -  

• No duty of care was owed  

• Claim failed  

 

Judicial reasoning -  

• HOL reversed the decision of the COA and held that no duty of care had arisen in relation to existing or potential shareholders 

• House of Lords stated that the law should be allowed to develop incrementally  

• When this is not a possibility – this case used as an authority for a three stage test 

  • Critiqued for overcomplicating the neighbour principle  

• Requirements of: 

  • Foreseeability – a duty will exist where the harm is reasonably foreseeable 

    • Depends on circumstances, parties, and the person conducting this assessment 

    • Judges use their advantage of hindsight to evaluate whether the reasonable defendant would have considered the very real possibility of harm that they neglected to take care of 

  • Proximity – the degree of connection between the parties and whether a duty ought to be imposed  

    • In this case: Dickman knowing that his statement would be communicated to Caparo  

    • Communication is a connection with a particular transaction  

    • Dickman should know that they would be relied upon for the statements in purpose of deciding whether or not to proceed with the transaction 

    • Contrast to Bourhill v Young [1943] AC 92 

  • It being fair, just and reasonable to impost a liability (heavily disputed as this applies to all cases including where precedent is available) - directs and moderates the application of other broad legal principles on the specific area of duty of care 

    • Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] AC 211  

      • A policy control mechanism – effect of the decision  

Duty of care - two stage test (Anns v Merton [1978])

• Approach to each case as an isolated and new material

Test -

• sufficient relationship of proximity in the reasonable contemplation of the former carelessness which the former is likely to cause damage to the latter

• Whether there are any consideration which ought to negate or reduce or limit the scope of the duty or the class of the person to whom it is owed (policy reasons for denying or restricting such a duty) or the damages to which a breach or it may give rise

Issues -

• test was too wide and broad

• Overruled in many cases - Murphy v Brentwood District Council [1991] UKHL 2