Civil Law & Functioning of Tort Rules
Tort law is Private, not public law. It settles disputes, it doesn’t aim to punish. Claimant v defendant,
state not involved (private). A civil case is bought by a person who has suffered injury or loss. Most
tort laws/obligations are judge made through common law and obligations are imposed by law, and
not usually assumed as in contract law.
A tort is a breach of a duty imposed by law which is remedied by damages usually. Aim of tort is to
give Remedies return claimant to the position they were in beforehand, with money but also can be
an injunction/abatement which is an order to stop something or risk prison.
Each Tort is a distinct civil wrong with its own rules, remedies and requirements. It includes things
like deprivation of liberty, damage to reputation, interference with enjoyment of land and
interference with business operations.
Small Claims Court- £1,000 for PI, £10,000 for General. County Court- Claims under £50,000. High
Court (QBD)- Claims over £50,000 and complicated issues of law claims. CoA/SC- Appeals. Judge sits
alone to decide: Liability, Remedy, Legal Costs. Burden of proof is the obligation of C.
Standard- ‘On the balance of probabilities’ meaning if you establish sufficient evidence, the law is on
your side. Lower standard as no risk of losing liberty. Burden of proof is the obligation of C. Can
appeal- Against liability, suggesting the judge misdirected themselves or against remedy +/-
Defence- Consent and Contributory Negligence can be used to claim or partly claim the claimant
caused their own damaged or injuries. Special Damages- Cover period up to the trial and claims that
can be specifically calculated. For personal injury claims, these include cost of treatment and loss of
earnings. General Damages- Cover period after trial and include pain/suffering as a result of
accident, future loss of earnings, future medical costs and loss of any amenity. PI damages more.
Imposes a duty on people not to harm others. (Harm includes damage to people’s bodies, minds,
homes, property, reputations and business interests). It established rules of conduct: A standard of
normative behaviour. They provide compensation & ensure retribution.
Legal Capacity- The general rule is that all natural and legal persons may sue or be sued in tort.
Children cannot start legal actions, started by an adult acting as his litigation friend. In some
circumstances, people may be liable for others` actions. This is the principle of vicarious liability.
Negligence- Duty of Care
A duty of care is a fundamental precondition of negligence liability
“The failure to take reasonable care where a duty to do so exists, and where breach of that duty
causes reasonably foreseeable recoverable loss or damage to the person to whom the duty is owed”
Donoghue v Stevenson (1932)- Lord Atkins’ judgement contained 5 critical elements;
1. Lack of contract should not prevent the claimant from claiming.
2. Negligence was accepted as a separate tort in its own right.
3. Negligence would need to satisfy a three-stage test – duty, breach and damage/loss.
4. ‘Neighbour principle’ “persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation”
, 5. Manufacturers would owe a duty to consumers not to cause harm.
Caparo Industries plc v Dickman [1990]- Current test to determine whether a duty of care exists.
1. Was the risk of injury or harm to the claimant reasonably foreseeable?
This is objective test and is seen in Smith & Others v Littlewoods 1987 acquittal. In Kent v Griffiths
(2000) a duty of care was owed by the ambulance service when they initially accepted the call and
as they failed in this duty, they were liable to pay compensation.
2. Was there sufficient proximity between the parties?
“Proximity” in this context means not just physical closeness, but any form of relationship between
the parties. Bourhill v Young [1942] the claimant was eight months pregnant, when she suffered
nervous shock and gave birth to a stillborn child after a fatal motorcycle crash happened about 50
yards away from her. No duty of care was owed to her due to no proximity. (Now she would be
classes as secondary victim). If allowed would have opened flood gates. McLoughlin v O’Brian
[1982], this is an important because it was the first time that damages had been awarded to
someone who had not been physically close to the accident. There was concern that this judgment
would “open the floodgates” to claimants traumatised by accidents involving friends or family.
3. Is it fair, just and reasonable, on public policy grounds, to impose a duty of care?
Hill v Chief Constable of West Yorkshire [1988], the conduct of the police investigations could be
restricted if officers constantly needed to be aware of the possibility of an action for negligence.
Osman v United Kingdom 1999- Police knew about issues that eventually caused crime causing the
distress. Court of Appeal still held police owed no duty of care to a claimant. Mitchell v Glasgow City
Council (2009)- Further, a duty to warn another person that he is at risk of loss, injury or damage as
a result of a criminal act of a third party will arise only where the person who is said to be under that
duty has, by his words or conduct, assumed responsibility for the safety of the person who is at risk.
In Robinson v CC of West Yorkshire (2018) the three-part test in Capara was criticised because:
-It did not say when a duty of care should be imposed but after the decision, judges and lawyers
applied the three-part test to every negligence claim. The police and other emergency services used
the defence in Hill that for policy reasons. Dismissed rumour around the third stage of Caparo on the
grounds that said Hill v CC Yorkshire had granted immunity to the police from negligence claims.
Where there exists an established liability such as PI there is no need to apply the third stage test.
If there is an existing, similar precedent for deciding if a duty of care exists, then that should be
followed. If there is a novel situate where it has not previously been decided it a duty of care exists,
then the Caparo three-stage test should be used. No blanket protection or single test.
This approach has been applied in Darnley v Croydon NHS Trust and in Sumner v Colborne.
Rescuers- The defendant owes a duty of care to the rescuer of the victim, provided that a reasonable
person in the rescuer’s situation would feel obliged to assist. A person who creates a dangerous
situation is liable for all foreseeable consequences of his negligence. Ward v T E Hopkins & Son Ltd
1959– Where rescue seen as “natural and proper”.
Negligence- Breach of Duty of Care
Tort law is Private, not public law. It settles disputes, it doesn’t aim to punish. Claimant v defendant,
state not involved (private). A civil case is bought by a person who has suffered injury or loss. Most
tort laws/obligations are judge made through common law and obligations are imposed by law, and
not usually assumed as in contract law.
A tort is a breach of a duty imposed by law which is remedied by damages usually. Aim of tort is to
give Remedies return claimant to the position they were in beforehand, with money but also can be
an injunction/abatement which is an order to stop something or risk prison.
Each Tort is a distinct civil wrong with its own rules, remedies and requirements. It includes things
like deprivation of liberty, damage to reputation, interference with enjoyment of land and
interference with business operations.
Small Claims Court- £1,000 for PI, £10,000 for General. County Court- Claims under £50,000. High
Court (QBD)- Claims over £50,000 and complicated issues of law claims. CoA/SC- Appeals. Judge sits
alone to decide: Liability, Remedy, Legal Costs. Burden of proof is the obligation of C.
Standard- ‘On the balance of probabilities’ meaning if you establish sufficient evidence, the law is on
your side. Lower standard as no risk of losing liberty. Burden of proof is the obligation of C. Can
appeal- Against liability, suggesting the judge misdirected themselves or against remedy +/-
Defence- Consent and Contributory Negligence can be used to claim or partly claim the claimant
caused their own damaged or injuries. Special Damages- Cover period up to the trial and claims that
can be specifically calculated. For personal injury claims, these include cost of treatment and loss of
earnings. General Damages- Cover period after trial and include pain/suffering as a result of
accident, future loss of earnings, future medical costs and loss of any amenity. PI damages more.
Imposes a duty on people not to harm others. (Harm includes damage to people’s bodies, minds,
homes, property, reputations and business interests). It established rules of conduct: A standard of
normative behaviour. They provide compensation & ensure retribution.
Legal Capacity- The general rule is that all natural and legal persons may sue or be sued in tort.
Children cannot start legal actions, started by an adult acting as his litigation friend. In some
circumstances, people may be liable for others` actions. This is the principle of vicarious liability.
Negligence- Duty of Care
A duty of care is a fundamental precondition of negligence liability
“The failure to take reasonable care where a duty to do so exists, and where breach of that duty
causes reasonably foreseeable recoverable loss or damage to the person to whom the duty is owed”
Donoghue v Stevenson (1932)- Lord Atkins’ judgement contained 5 critical elements;
1. Lack of contract should not prevent the claimant from claiming.
2. Negligence was accepted as a separate tort in its own right.
3. Negligence would need to satisfy a three-stage test – duty, breach and damage/loss.
4. ‘Neighbour principle’ “persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation”
, 5. Manufacturers would owe a duty to consumers not to cause harm.
Caparo Industries plc v Dickman [1990]- Current test to determine whether a duty of care exists.
1. Was the risk of injury or harm to the claimant reasonably foreseeable?
This is objective test and is seen in Smith & Others v Littlewoods 1987 acquittal. In Kent v Griffiths
(2000) a duty of care was owed by the ambulance service when they initially accepted the call and
as they failed in this duty, they were liable to pay compensation.
2. Was there sufficient proximity between the parties?
“Proximity” in this context means not just physical closeness, but any form of relationship between
the parties. Bourhill v Young [1942] the claimant was eight months pregnant, when she suffered
nervous shock and gave birth to a stillborn child after a fatal motorcycle crash happened about 50
yards away from her. No duty of care was owed to her due to no proximity. (Now she would be
classes as secondary victim). If allowed would have opened flood gates. McLoughlin v O’Brian
[1982], this is an important because it was the first time that damages had been awarded to
someone who had not been physically close to the accident. There was concern that this judgment
would “open the floodgates” to claimants traumatised by accidents involving friends or family.
3. Is it fair, just and reasonable, on public policy grounds, to impose a duty of care?
Hill v Chief Constable of West Yorkshire [1988], the conduct of the police investigations could be
restricted if officers constantly needed to be aware of the possibility of an action for negligence.
Osman v United Kingdom 1999- Police knew about issues that eventually caused crime causing the
distress. Court of Appeal still held police owed no duty of care to a claimant. Mitchell v Glasgow City
Council (2009)- Further, a duty to warn another person that he is at risk of loss, injury or damage as
a result of a criminal act of a third party will arise only where the person who is said to be under that
duty has, by his words or conduct, assumed responsibility for the safety of the person who is at risk.
In Robinson v CC of West Yorkshire (2018) the three-part test in Capara was criticised because:
-It did not say when a duty of care should be imposed but after the decision, judges and lawyers
applied the three-part test to every negligence claim. The police and other emergency services used
the defence in Hill that for policy reasons. Dismissed rumour around the third stage of Caparo on the
grounds that said Hill v CC Yorkshire had granted immunity to the police from negligence claims.
Where there exists an established liability such as PI there is no need to apply the third stage test.
If there is an existing, similar precedent for deciding if a duty of care exists, then that should be
followed. If there is a novel situate where it has not previously been decided it a duty of care exists,
then the Caparo three-stage test should be used. No blanket protection or single test.
This approach has been applied in Darnley v Croydon NHS Trust and in Sumner v Colborne.
Rescuers- The defendant owes a duty of care to the rescuer of the victim, provided that a reasonable
person in the rescuer’s situation would feel obliged to assist. A person who creates a dangerous
situation is liable for all foreseeable consequences of his negligence. Ward v T E Hopkins & Son Ltd
1959– Where rescue seen as “natural and proper”.
Negligence- Breach of Duty of Care
