Week 14 – Introduction
There are a great many of torts – we’ll only look at some of them
What is tort law?
- The law of civil wrongs
Tort and criminal law:
- Contrasted and distinguished w/ criminal law
- Involve claim brought by claimant who sues defendant – who may be held liable + court will reward
remedy - most commonly damages
- Trials mostly heard by judge – juries used for very small number of torts
- Same act may constitute crime and a tort
Tort law close relation to contract law – both law of obligations
- Overlap
- But also differences – on contract – duty to other party and no one else – in tort, duty owed to and by
other persons
- In tort – parties can be complete strangers w/ no prior interaction
- Duty is imposed rather than assumed – arises because of conduct not because of promise
- w/ tortious duties – claimant need not give anything in return for defendant’s duty
What is tort law for?
In practice – primary function is to provide compensation for harm – most commonly accidental
Court orders c to pay sum of damages to indemnify c for loss/ damage she has suffered as a result of D’s tort
'The law of tort exists to compensate victims of wrongful conduct’
- Dunnage v Randall [2015] EWCA Civ 673 [129] Vos LJ
Not limited to accidental harm – can be where D deliberately or maliciously does some tort
‘Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of
damages you should as nearly as possible get at that sum of money which will put the party who has been
injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong
for which he is now getting his compensation’
Livingstone v The Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn)
,Tort law does more than provide compensation – has another important function = vindication
Vindication = making good of certain fundamental rights and interests
‘The function of the law is to enable rights to be vindicated and to provide remedies when duties have been
breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content.’
Chester v Afshar [2004] UKHL 41 at [87] (Lord Hope)
Third important function of tort law = deterrence
Serves in part to deter undesirable conduct or activities by making available remedy to those who are
adversely affected
Could also be said to encourage/ incentivise desirable conduct
- Social action responsibility and heroism act – in certain situations, requires court to take into account
whether D acting heroically or for benefit of society
Tort law goes beyond deterrence to pursue a punitive function – exceptionally court may award punitive
damages in a tort action in order to make example of D + show him wrongdoing does not pay
- May order payment that exceeds c’s loss
- No reported English case of punitive damages being awarded in negligence
In summary – tort laws principles functions may be seen as providing compensation for loss + vindication of
fundamental rights + seeks to deter/ punish some types of conduct
3 key aspects of tortious liability/ fundamental building blocks which liability rests
- Tort law is part of civil law – need to focus on C + what sort of harm she has suffered
- Need to examine D’s conduct – what has he done wrong?
- Need to consider the link between these two – varies as between the different torts
Now will go into the different torts we will look at in the module:
, Tort of negligence
Probably most important tort
w/negligence, tort law very much pursuing its compensatory function
Negligence as tort really all about compensation for accidental harm
C wants compensation damages as she has suffered harm because of Ds carelessness /negligence
Tort of negligence may enable C to recover compensation for harm suffered as result of Ds negligence
Most negligence claims occur in eg, roads, work, hospitals
Stages in Establishing Liability in Negligence Issue
1 Has C suffered loss or harm which amounts to recognised damage? Damage
2 Did D owe C a duty to take reasonable care not to cause C the type or harm Duty
suffered?
3 Did D breach that duty? Breach
4 Was C’s damage caused as matter of fact by D’s breach? Factual
causation
5 Was the damage too remote a consequence of D’s breach? Remoteness
6 Was the damage caused as a matter of law by D’s breach? Legal causation
7 Was the damage within the scope of D’s duty? Scope of duty
8 Can D rely on any defences? Defences
, This is just one view of best way to approach establishing liability in negligence – doesn’t really matter, no
single right way – C must show all these
Stage 1 – Damage
Has C suffered loss or harm which amounts to recognised damage?
Essential element in claim – bound to fail unless C can show she has suffered actionable harm
Look at it first – save time by checking whether damage has been suffered first + thus if there is liability
What counts as actionable damage varies between different torts
- In tort of negligence, actionable damages are narrower – eg doesn’t count just stress + grief – would
be recognised type of mental harm (PTSD etc)
When considering whether duty of care exists – vital to bear in mind the type of harm that’s been suffered
- Duty question linked to damages question
Types of harm:
Personal injury – most important/ serious
- Physical – easier to establish duty of care where relevant harm is physical
- Psychiatric
Property damage
- Physical damage to physical property
(Pure) financial/ economic loss
- Where the damage is purely financial
- eg been negligently advised to invest in company that goes bust + lost money. Not where after car
crash and have to pay to repair – damages there would be property damage
- Much harder to establish liability where loss financial rather than physical
Stage 2 – Duty
Did D owe C a duty to take reasonable care not to cause C the type or harm suffered?
Inextricably linked to damages question
In every negligence action C must show D owed her a duty to take reasonable care not to cause her the type of
harm she has suffered
Important to bear in mind – type of harm suffered (talked about above) + D’s conduct
Duty relates to type of harm and type of conduct
Court will take account of what type of conduct the duty relates to – is it a duty covering:
• Act – is C complaining of something D did – easier to establish - Robinson v West Yorkshire Police
There are a great many of torts – we’ll only look at some of them
What is tort law?
- The law of civil wrongs
Tort and criminal law:
- Contrasted and distinguished w/ criminal law
- Involve claim brought by claimant who sues defendant – who may be held liable + court will reward
remedy - most commonly damages
- Trials mostly heard by judge – juries used for very small number of torts
- Same act may constitute crime and a tort
Tort law close relation to contract law – both law of obligations
- Overlap
- But also differences – on contract – duty to other party and no one else – in tort, duty owed to and by
other persons
- In tort – parties can be complete strangers w/ no prior interaction
- Duty is imposed rather than assumed – arises because of conduct not because of promise
- w/ tortious duties – claimant need not give anything in return for defendant’s duty
What is tort law for?
In practice – primary function is to provide compensation for harm – most commonly accidental
Court orders c to pay sum of damages to indemnify c for loss/ damage she has suffered as a result of D’s tort
'The law of tort exists to compensate victims of wrongful conduct’
- Dunnage v Randall [2015] EWCA Civ 673 [129] Vos LJ
Not limited to accidental harm – can be where D deliberately or maliciously does some tort
‘Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of
damages you should as nearly as possible get at that sum of money which will put the party who has been
injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong
for which he is now getting his compensation’
Livingstone v The Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn)
,Tort law does more than provide compensation – has another important function = vindication
Vindication = making good of certain fundamental rights and interests
‘The function of the law is to enable rights to be vindicated and to provide remedies when duties have been
breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content.’
Chester v Afshar [2004] UKHL 41 at [87] (Lord Hope)
Third important function of tort law = deterrence
Serves in part to deter undesirable conduct or activities by making available remedy to those who are
adversely affected
Could also be said to encourage/ incentivise desirable conduct
- Social action responsibility and heroism act – in certain situations, requires court to take into account
whether D acting heroically or for benefit of society
Tort law goes beyond deterrence to pursue a punitive function – exceptionally court may award punitive
damages in a tort action in order to make example of D + show him wrongdoing does not pay
- May order payment that exceeds c’s loss
- No reported English case of punitive damages being awarded in negligence
In summary – tort laws principles functions may be seen as providing compensation for loss + vindication of
fundamental rights + seeks to deter/ punish some types of conduct
3 key aspects of tortious liability/ fundamental building blocks which liability rests
- Tort law is part of civil law – need to focus on C + what sort of harm she has suffered
- Need to examine D’s conduct – what has he done wrong?
- Need to consider the link between these two – varies as between the different torts
Now will go into the different torts we will look at in the module:
, Tort of negligence
Probably most important tort
w/negligence, tort law very much pursuing its compensatory function
Negligence as tort really all about compensation for accidental harm
C wants compensation damages as she has suffered harm because of Ds carelessness /negligence
Tort of negligence may enable C to recover compensation for harm suffered as result of Ds negligence
Most negligence claims occur in eg, roads, work, hospitals
Stages in Establishing Liability in Negligence Issue
1 Has C suffered loss or harm which amounts to recognised damage? Damage
2 Did D owe C a duty to take reasonable care not to cause C the type or harm Duty
suffered?
3 Did D breach that duty? Breach
4 Was C’s damage caused as matter of fact by D’s breach? Factual
causation
5 Was the damage too remote a consequence of D’s breach? Remoteness
6 Was the damage caused as a matter of law by D’s breach? Legal causation
7 Was the damage within the scope of D’s duty? Scope of duty
8 Can D rely on any defences? Defences
, This is just one view of best way to approach establishing liability in negligence – doesn’t really matter, no
single right way – C must show all these
Stage 1 – Damage
Has C suffered loss or harm which amounts to recognised damage?
Essential element in claim – bound to fail unless C can show she has suffered actionable harm
Look at it first – save time by checking whether damage has been suffered first + thus if there is liability
What counts as actionable damage varies between different torts
- In tort of negligence, actionable damages are narrower – eg doesn’t count just stress + grief – would
be recognised type of mental harm (PTSD etc)
When considering whether duty of care exists – vital to bear in mind the type of harm that’s been suffered
- Duty question linked to damages question
Types of harm:
Personal injury – most important/ serious
- Physical – easier to establish duty of care where relevant harm is physical
- Psychiatric
Property damage
- Physical damage to physical property
(Pure) financial/ economic loss
- Where the damage is purely financial
- eg been negligently advised to invest in company that goes bust + lost money. Not where after car
crash and have to pay to repair – damages there would be property damage
- Much harder to establish liability where loss financial rather than physical
Stage 2 – Duty
Did D owe C a duty to take reasonable care not to cause C the type or harm suffered?
Inextricably linked to damages question
In every negligence action C must show D owed her a duty to take reasonable care not to cause her the type of
harm she has suffered
Important to bear in mind – type of harm suffered (talked about above) + D’s conduct
Duty relates to type of harm and type of conduct
Court will take account of what type of conduct the duty relates to – is it a duty covering:
• Act – is C complaining of something D did – easier to establish - Robinson v West Yorkshire Police
