Law of Torts

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)).

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

• 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

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!

• 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 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”

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)

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)

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.