UNIT 1: INTRODUCTION TO TORT
1. Range and Scope of Tort Law
Human Rights Act 1998 (HRA 1998):
o Direct alternative to tort action when the defendant is a public body.
o Indirect influence on tort law development.
1.1 Types of Harm
Recognised Harm:
o Claimant must prove harm recognised by tort law.
Actionable Per Se: No need for tangible harm, e.g.:
o Battery
o Assault
Case Example: Bradford Corporation v Pickles – Claim fails if harm isn’t
recognised unless they can convince court to extend the law
1.2 Policy Limitations
No duty = no remedy in cases like negligently caused harm.
Public bodies (e.g., police) face rigid limitations; HRA 1998 offers an alternative
route for claim
1.3 Tort and Human Rights
Rights from ECHR in English Law:
o Article 2: Right to life
o Article 5: Right to liberty
o Article 6: Right to a fair trial
o Article 8: Respect for private/family life
o Article 10: Freedom of expression
HRA Sections:
o Section 6: Unlawful for public authorities to breach Convention rights.
o Section 7: Victims can sue public authorities.
o Section 8: Courts can award damages for breaches.
Influence of Human Rights:
o Balances freedom of speech (Article 10) and private life (Article 8).
o E.g., Wainwright v Home Office – No new tort for privacy distress.
2. How Tort Works
Parties:
o Children: Sued via litigation friend (parent/guardian).
o Companies: Ltd entities have legal personalities.
o Death: Claims (except defamation) survive via personal representatives.
Limitation Periods (Limitation Act 1980):
o General Tort Claims: 6 years from damage occurrence.
o Defamation: 1 year.
o Personal Injury: 3 years.
3. Introduction to Negligence
Definition: Breach of legal duty of care, causing harm to claimant, undesired
by defendant.
4. Duty of Care
Established Duty Situations:
o Road users, doctor-patient, employer-employee, manufacturer-consumer.
o Rescuers (Baker v TE Hopkins & Son Ltd): Duty owed if danger created.
Novel Duty Situations:
, o Neighbour Principle (Donoghue v Stevenson):
Care owed to those foreseeably affected by your actions.
Courts use this to determine new duty situations.
Novel situations- Caparo test
o Foreseeability (objective test)
Only the particular type of lost must be foreseeable
o Sufficient proximity of relationship between the claimant and defendant
o Fair, just and reasonable
Policy concerns
Exceptions to Caparo:
o Control
o Assumption of responsibility
o Creation/Adoption of risk
o Special relationship
Contractual relationship (not just limited to this)
4.2.3 Duty of Care and Policy Considerations
Floodgates Argument:
o Courts may avoid ruling in favour of the claimant to prevent a surge of
similar claims.
Deterrence:
o Courts may rule in favour of the claimant to deter others from engaging in
anti-social or wrongful behavior.
Resources:
o Compensation often comes from insurers, not the defendant directly.
Courts consider the wider impact on society (e.g., increased insurance
premiums).
o If the defendant is uninsured, the court will weigh its decision more
carefully.
Public Benefit:
o Courts may consider the public good that results from a decision (e.g.,
improving public safety).
Upholding the Law:
o Even if a ruling seems unjust to the public, courts must uphold legal
principles to maintain the rule of law.
4.2.4 Test for Duty in Novel Situations: Conclusions
Duty Owed:
o Harm from a positive act of wrongdoing causing foreseeable physical
injury or property damage generally results in a duty of care.
No Duty Owed:
o Harm caused by public bodies, omissions (failure to act), pure psychiatric
injury, or pure economic loss may not attract a duty of care.
4.3 Liability for Omissions to Act
General Rule:
o No duty to the world for omissions (e.g., Stovin v Wise).
4.3.2 Duty When You Act Voluntarily
Case: East Suffolk Rivers Catchment Board v Kent
o No liability for slow repairs to a sea wall. Liability only arises if the
defendant makes matters worse through intervention.
Rescuers:
o No duty to rescue someone in danger unless you worsen the situation.
,4.3.3 Exceptions: When There's a Duty to Act
Special Relationships:
o Employers/employees, schools/children, parents/children, etc., have a
duty to take positive action.
Third Party Harm:
o Duty can arise when one party controls another (e.g., Home Office v
Dorset Yacht Co Ltd).
Key Case Examples:
Smith v Littlewoods:
o No duty for damage caused by third-party vandals unless danger was
known or foreseeable.
Carmarthenshire County Council v Lewis:
o Duty to control a child in school who endangered others.
Breach of Duty: Overview
1. Definition: Whether the defendant breached a duty of care is a question of
fact for the judge.
2. Two-Stage Test:
o Stage 1: Assess the standard of care the defendant should have
exercised (question of law).
o Stage 2: Determine if the defendant's conduct fell below the required
standard (question of fact).
5.1 Standard of Care
Definition: The standard expected of a reasonable person (objective
standard).
o Case Law: Blyth v Birmingham Waterworks; Glasgow Corp v Muir.
5.1.1 Special Standards
1. Skilled Defendant:
o Judged against someone with the same skill (Bolam v Friern Hospital).
o The court can reject professional opinion if it is illogical (Bolitho v City and
Hackney).
2. Under-Skilled Defendant:
o Inexperience is not a defence (Wilsher v Essex).
o Examples:
- Learner driver- standard of the reasonably competent driver
- Junior doctors- no allowance for inexperience, level of competence of
doctor holding the same post, call on more exert assistance when he
feels he is getting out his depth
- Householder- odd jobs around the house, reasonably competent
amateur carpenter or minimum standard required by task taken (even
if they don’t profess to have the skill), likely negligent if attempts skill
exceeding skill unaided
- Children: Judged by the standard of a reasonable child of the same
age.
5.2 Factors Determining Standard of Care
1. Magnitude of Risk:
o Likelihood of Injury: Greater likelihood = greater precautions (Bolton v
Stone).
, o Seriousness of Injury: Higher risk (e.g., pre-existing disability) = higher
care (Paris v Stepney).
2. Cost of Precautions:
o Low cost to reduce significant risk = required (Latimer v AEC Ltd).
o Impecuniosity (lack of resources) is not a defence.
3. Defendant’s Purpose:
o Value to society of the defendant’s activities is a factor which the courts
consider in determining their reasonableness
o Behaviour = in public interest- defendant less likely to be held liable in
negligence
o High social utility justifies higher risk (Watt v Hertfordshire).
o No utility = very high care required to justify even small risk to others
o If human life is at stake, a defendant may be justified in taking abnormal
risks
4. Common Practice:
o Compliance with trade practice is evidence of not being negligent but not
conclusive (Re The Herald of Free Enterprise).
5. State of Knowledge:
o Foreseeability judged in light of knowledge available to the defendant at
the time of the event (Roe v Ministry of Health).
6. Limitations of "Reasonable":
o Guard against reasonable probabilities, not fantastic possibilities (Fardon
v Harcourt-Rivington).
o A rare event is not a fantastic possibility
o Unexpected medical issues may excuse liability (Mansfield v Weetabix)
1. Defendant driver unaware they suffer from a medical condition- not
in breach if he has met the standard of a reasonable driver who is
unaware of his condition
2. Driver suffering sudden heart attack is not in breach
3. Defendant who knew he was adversely affected by a medical
condition- liable if he unreasonable undertook an activity and
caused harm because his performance was impaired
6. Proving Breach of Duty
1. Burden of Proof: On the claimant to prove negligence on the balance of
probabilities.
2. Res Ipsa Loquitur ("The thing speaks for itself"):
o Conditions:
1. Defendant had control of the situation.
2. Accident usually doesn’t happen without negligence.
3. Cause of the accident is unknown (Scott v London and St Katherine
Docks).
o Effect: Shifts the burden to the defendant to disprove negligence.
- Needs to show:
o How the accident actually happened and this was not due to
negligence on his part or
o If he cannot show how the accident actually happened, that he
had at all times, used reasonable care
3. Section 11, Civil Evidence Act 1968:
o Criminal conviction = evidence of negligence in civil claims.
o E.g., conviction for careless driving supports a negligence claim.
o Convicted of driving without insurance doesn’t show the defendant failed
to drive carefully
1. Range and Scope of Tort Law
Human Rights Act 1998 (HRA 1998):
o Direct alternative to tort action when the defendant is a public body.
o Indirect influence on tort law development.
1.1 Types of Harm
Recognised Harm:
o Claimant must prove harm recognised by tort law.
Actionable Per Se: No need for tangible harm, e.g.:
o Battery
o Assault
Case Example: Bradford Corporation v Pickles – Claim fails if harm isn’t
recognised unless they can convince court to extend the law
1.2 Policy Limitations
No duty = no remedy in cases like negligently caused harm.
Public bodies (e.g., police) face rigid limitations; HRA 1998 offers an alternative
route for claim
1.3 Tort and Human Rights
Rights from ECHR in English Law:
o Article 2: Right to life
o Article 5: Right to liberty
o Article 6: Right to a fair trial
o Article 8: Respect for private/family life
o Article 10: Freedom of expression
HRA Sections:
o Section 6: Unlawful for public authorities to breach Convention rights.
o Section 7: Victims can sue public authorities.
o Section 8: Courts can award damages for breaches.
Influence of Human Rights:
o Balances freedom of speech (Article 10) and private life (Article 8).
o E.g., Wainwright v Home Office – No new tort for privacy distress.
2. How Tort Works
Parties:
o Children: Sued via litigation friend (parent/guardian).
o Companies: Ltd entities have legal personalities.
o Death: Claims (except defamation) survive via personal representatives.
Limitation Periods (Limitation Act 1980):
o General Tort Claims: 6 years from damage occurrence.
o Defamation: 1 year.
o Personal Injury: 3 years.
3. Introduction to Negligence
Definition: Breach of legal duty of care, causing harm to claimant, undesired
by defendant.
4. Duty of Care
Established Duty Situations:
o Road users, doctor-patient, employer-employee, manufacturer-consumer.
o Rescuers (Baker v TE Hopkins & Son Ltd): Duty owed if danger created.
Novel Duty Situations:
, o Neighbour Principle (Donoghue v Stevenson):
Care owed to those foreseeably affected by your actions.
Courts use this to determine new duty situations.
Novel situations- Caparo test
o Foreseeability (objective test)
Only the particular type of lost must be foreseeable
o Sufficient proximity of relationship between the claimant and defendant
o Fair, just and reasonable
Policy concerns
Exceptions to Caparo:
o Control
o Assumption of responsibility
o Creation/Adoption of risk
o Special relationship
Contractual relationship (not just limited to this)
4.2.3 Duty of Care and Policy Considerations
Floodgates Argument:
o Courts may avoid ruling in favour of the claimant to prevent a surge of
similar claims.
Deterrence:
o Courts may rule in favour of the claimant to deter others from engaging in
anti-social or wrongful behavior.
Resources:
o Compensation often comes from insurers, not the defendant directly.
Courts consider the wider impact on society (e.g., increased insurance
premiums).
o If the defendant is uninsured, the court will weigh its decision more
carefully.
Public Benefit:
o Courts may consider the public good that results from a decision (e.g.,
improving public safety).
Upholding the Law:
o Even if a ruling seems unjust to the public, courts must uphold legal
principles to maintain the rule of law.
4.2.4 Test for Duty in Novel Situations: Conclusions
Duty Owed:
o Harm from a positive act of wrongdoing causing foreseeable physical
injury or property damage generally results in a duty of care.
No Duty Owed:
o Harm caused by public bodies, omissions (failure to act), pure psychiatric
injury, or pure economic loss may not attract a duty of care.
4.3 Liability for Omissions to Act
General Rule:
o No duty to the world for omissions (e.g., Stovin v Wise).
4.3.2 Duty When You Act Voluntarily
Case: East Suffolk Rivers Catchment Board v Kent
o No liability for slow repairs to a sea wall. Liability only arises if the
defendant makes matters worse through intervention.
Rescuers:
o No duty to rescue someone in danger unless you worsen the situation.
,4.3.3 Exceptions: When There's a Duty to Act
Special Relationships:
o Employers/employees, schools/children, parents/children, etc., have a
duty to take positive action.
Third Party Harm:
o Duty can arise when one party controls another (e.g., Home Office v
Dorset Yacht Co Ltd).
Key Case Examples:
Smith v Littlewoods:
o No duty for damage caused by third-party vandals unless danger was
known or foreseeable.
Carmarthenshire County Council v Lewis:
o Duty to control a child in school who endangered others.
Breach of Duty: Overview
1. Definition: Whether the defendant breached a duty of care is a question of
fact for the judge.
2. Two-Stage Test:
o Stage 1: Assess the standard of care the defendant should have
exercised (question of law).
o Stage 2: Determine if the defendant's conduct fell below the required
standard (question of fact).
5.1 Standard of Care
Definition: The standard expected of a reasonable person (objective
standard).
o Case Law: Blyth v Birmingham Waterworks; Glasgow Corp v Muir.
5.1.1 Special Standards
1. Skilled Defendant:
o Judged against someone with the same skill (Bolam v Friern Hospital).
o The court can reject professional opinion if it is illogical (Bolitho v City and
Hackney).
2. Under-Skilled Defendant:
o Inexperience is not a defence (Wilsher v Essex).
o Examples:
- Learner driver- standard of the reasonably competent driver
- Junior doctors- no allowance for inexperience, level of competence of
doctor holding the same post, call on more exert assistance when he
feels he is getting out his depth
- Householder- odd jobs around the house, reasonably competent
amateur carpenter or minimum standard required by task taken (even
if they don’t profess to have the skill), likely negligent if attempts skill
exceeding skill unaided
- Children: Judged by the standard of a reasonable child of the same
age.
5.2 Factors Determining Standard of Care
1. Magnitude of Risk:
o Likelihood of Injury: Greater likelihood = greater precautions (Bolton v
Stone).
, o Seriousness of Injury: Higher risk (e.g., pre-existing disability) = higher
care (Paris v Stepney).
2. Cost of Precautions:
o Low cost to reduce significant risk = required (Latimer v AEC Ltd).
o Impecuniosity (lack of resources) is not a defence.
3. Defendant’s Purpose:
o Value to society of the defendant’s activities is a factor which the courts
consider in determining their reasonableness
o Behaviour = in public interest- defendant less likely to be held liable in
negligence
o High social utility justifies higher risk (Watt v Hertfordshire).
o No utility = very high care required to justify even small risk to others
o If human life is at stake, a defendant may be justified in taking abnormal
risks
4. Common Practice:
o Compliance with trade practice is evidence of not being negligent but not
conclusive (Re The Herald of Free Enterprise).
5. State of Knowledge:
o Foreseeability judged in light of knowledge available to the defendant at
the time of the event (Roe v Ministry of Health).
6. Limitations of "Reasonable":
o Guard against reasonable probabilities, not fantastic possibilities (Fardon
v Harcourt-Rivington).
o A rare event is not a fantastic possibility
o Unexpected medical issues may excuse liability (Mansfield v Weetabix)
1. Defendant driver unaware they suffer from a medical condition- not
in breach if he has met the standard of a reasonable driver who is
unaware of his condition
2. Driver suffering sudden heart attack is not in breach
3. Defendant who knew he was adversely affected by a medical
condition- liable if he unreasonable undertook an activity and
caused harm because his performance was impaired
6. Proving Breach of Duty
1. Burden of Proof: On the claimant to prove negligence on the balance of
probabilities.
2. Res Ipsa Loquitur ("The thing speaks for itself"):
o Conditions:
1. Defendant had control of the situation.
2. Accident usually doesn’t happen without negligence.
3. Cause of the accident is unknown (Scott v London and St Katherine
Docks).
o Effect: Shifts the burden to the defendant to disprove negligence.
- Needs to show:
o How the accident actually happened and this was not due to
negligence on his part or
o If he cannot show how the accident actually happened, that he
had at all times, used reasonable care
3. Section 11, Civil Evidence Act 1968:
o Criminal conviction = evidence of negligence in civil claims.
o E.g., conviction for careless driving supports a negligence claim.
o Convicted of driving without insurance doesn’t show the defendant failed
to drive carefully
