Tort Law
Unit 1: Introduction to Tort and Negligence
Tort = a civil wrong.
A tort involves the infringement of a legal right (or breach of a legal duty).
A tortious act is one which causes harm, injury, or loss to someone because of another person’s
wrongdoing
A person who commits a tort is called ‘a tortfeasor’.
The Law of Tort = the body of civil law which governs what happens when one person sues another
person because of what that person has done.
Claims are brought to the civil courts (County Court and High Court).
There are some general principles which apply to all torts, but each also has its own set of rules
which must be satisfied for a claim to succeed.
The principal function of tort law is compensation. People use the law of tort because they wish to
seek some ‘remedy’ for the wrong they have suffered. These remedies are often financial.
Functions of the law of tort
1. Compensation
2. Deterrence
3. Justice
4. Vindication of Rights
1. Compensation
Primary function of tort law.
Limitations to the law’s effectiveness in this respect: delays involved with litigation (prevents victims
from ever being compensated at the point of need), expense of litigation and lack of public funding,
ability of the defendant to afford the costs of compensation.
2. Deterrence
Potential liability in tort may have a deterrent effect.
Likely to think twice about behaving wrongly of you know you will have to pay damages.
Fears about tarnishing commercial or professional reputation.
Where an insurance company foot the compensation bill, the deterrence effect will be weaker.
3. Justice
Comprises retribution against the wrongdoer and compensation.
Justice may be limited where insurance companies foot the bill.
4. Vindication of Rights
Claimants may care more about principles than compensation.
Claims can be brought in tort to initiate an investigation or to provoke authorities into acting.
Especially true in cases of prevalent large-scale disasters e.g., Grenfell Tower.
The range and scope of tort law
, The law of tort protects against certain types of harm but not others. Not necessarily tangible harm
– some torts are ‘actionable per se’ (do not require claimant to have suffered any actual injury or
damage).
Remedies are not granted simply because someone has suffered harm. Bradford Corporation v
Pickles.
The claimant must show that the loss or injury they have suffered is a type of harm recognised by
the existing law of tort, or they must persuade the courts to extend the law.
Duty of care: A claimant will only be protected under tort law if the court finds that the defendant
owed a duty of care. This can make it difficult to pursue claims against public bodies such as the
police. Instead, a claim under the Human Rights Act 1998 may provide an alternative to an action in
court.
o The HRA 1998 gave effect to many of the rights set out by the ECHR.
o A key provision is s 6 which states that it is unlawful for a public authority to act in a way that
is incompatible with a Convention right. s 7 allows a victim of such a breach to bring
proceedings against the public authority and for the court to award remedies.
o So, where the defendant is a public body, the HRA 1998 may sometimes provide a direct
alternative to a claim in tort.
o Since the courts themselves are public authorities, it can be argued that the courts must
ensure that their judgements are compatible with Convention rights. This allows human
rights to have an indirect influence on the development of the law of tort.
How tort works
In all torts, the law has developed a number of elements that the claimant must be able to prove. If
they can, a ‘case in principle’ is established (a prima facie case). They will succeed unless the
defendant can establish a defence.
In civil cases, the claimant must prove their case ‘on balance of probabilities’ (i.e., more likely than
not). Criminal cases it is ‘beyond reasonable doubt’.
o Lower standard of proof needed as stakes are lower in civil cases (outcomes affect financial
compensation rather than someone’s liberty).
o Also, often harder to satisfy the standard of proof (not every accident is investigated by the
police and witness evidence is not always collected).
Parties
General rule = an individual can be sue or be sued by anyone. Including limited companies and even
partnerships with no legal personality can sue or be sued in their partnership name.
Children dealt with differently. Can sue or be sued, but litigation undertaken by a ‘litigation friends’
(usually parent/guardian). Parents are not liable legally or financially for the torts of their children,
so it is often not financially worth bringing a claim against a child.
When a person dies, any claim (with the exception of defamation) that they had in tort or any claim
against them survives and is taken over by their personal representatives.
Limitation Period
Claims in tort must be commenced within certain times. Set out in the Limitation Act 1980.
Generally, 6 years.
Defamation is 1 year.
Personal injury is 3 years.
The limitation period for claims involving children only begins when the child reaches 18.
,Negligence
= a breach of legal duty of care owed to a claimant that results in harm to the claimant, undesired by the
defendant.
A common law tort. Not contained in an act of Parliament.
Allows claimants to seek remedies for harm caused by carelessness.
A negligence claim will only be successful if the defendant owed a duty of care to the claimant.
The landmark case Donoghue v Stevenson 1932 (“Snail in the Bottle”) established the principles on
which the modern tort of negligence is based. The case established the “neighbour principle”
which should be applied to any novel situation which has not come before the courts before. Lord
Macmillan: “you must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour”.
1. Did the defendant owe the claimant a duty of care? (DUTY)
2. Was the defendant in breach of that duty of care? (BREACH)
3. Did the defendant’s breach of duty cause damage to the claimant? (CAUSATION)
4. Are there any defences available to the defendant? (DEFENCES)
Duty of Care
= a legal obligation imposed on an individual, requiring them to take reasonable care to avoid careless
acts that could foreseeably harm others. It will be owed whenever harm is caused by one individual to
another by a positive act of wrongdoing and that harm is foreseeable physical injury to the person of
physical damage to property.
Duty of care is the first element which a claimant has to prove. A defendant will only be liable in
negligence if they are under a legal duty to take care of the person who is injured.
Established duty situations: situations in which judicial precedent has found that a duty of care
does exist, e.g., doctor to patient, employer-employee, driver to pedestrian (Nettleship and Road
Traffic Act 1988) contractors owe an established duty to take reasonable care to avoid harm to
those who could reasonably be affected by their work. AC Billings & Son v Riden
Baker TE Hopkins & Son Ltd set the precedent that where a defendant’s actions have created a
dangerous situation so that it is reasonably foreseeable that someone may attempt a rescue, the
defendant owes a duty of care to the rescuer. Case in which the defendant (a careless driver) was
liable in negligence to both his injured victim and their rescuer who suffered injuries during the
rescue.
Novel duty situations: situations which have not been brought before the courts before. Courts
should apply the three-part Caparo test to determine duty of care, which refined the
neighbourhood principle in Donoghue v Stevenson.
1. Reasonable foreseeability
2. Proximity
3. Fairness, justice, and reasonableness:
1. Reasonable Foreseeability
Is it reasonably foreseeable that negligence on the part of the defendant would cause harm
to the claimant?
Bourhill v Young no reasonable foreseeability of harm. The defendant was found not to have
owed a duty of care to the claimant who had heard a road accident, walked to the scene,
and claimed damages for the shock and miscarriage she experienced as a result of seeing
blood on the road. Claimant was not a foreseeable victim of the motorcyclists’ negligence.
, 2. Proximity
Do the claimant and defendant have sufficient proximity of relationship to impose a duty of
care on the defendant?
3. Fairness, just, and reasonable
Is it fair, just, and reasonable to impose a duty of care on the defendant?
Marc Rich v Bishop Rock Marine Co Ltd – it would not be fair to impose a duty of care as the
society was non-profit making and operated only for the collective welfare in promoting
safety at sea.
The duty of care and policy
Policy plays an important role in whether a duty of care exists.
Policy factors:
o Deterring certain types of behaviour – ruling in a certain way to deter others from acting in
the same way
o Benefitting the wider public - ruling in a certain way to increase public safety
o Preventing ‘floodgate effect’ – if one case succeeds, many similar cases could be brought
before courts
o Resources – the courts consider whether or not the defendant has the resources to pay
There may not be a duty of care when harm is caused by a public body such as a local authority or
the police.
o If a duty of care was imposed on the police, that duty would be too onerous. Every time a
criminal committed an offence, the police would be liable in a civil claim. Hill v Chief
Constable of West Yorkshire police were exonerated from liability for not stopping a serial
killer as they did not owe a duty of care to an individual as their duty of care is to the public
at large.
o In contrast, in Kirkham v Chief Constable of Greater Manchester Police, the police were
liable. Claimant’s husband had committed suicide whilst in police custody and it was held
that the police owed a duty to pass on information that might have prevented his suicide.
o Where the defendant is a public body, the HRA 1998 may sometimes provide a direct
alternative to a claim in tort. (See above ‘range and scope’ or WS1 prepare task).
When will there NOT be a duty of care owed?
There may be no duty of care when:
1. Harm is caused by a public body, e.g., the police. In this case, the General Exclusionary rule applies.
2. Harm is caused by an omission to act (as opposed to a positive act of wrongdoing)
3. Harm caused is pure psychiatric injury
4. Harm caused is pure economic loss
(Because the Caparo criteria are less likely to be met in these cases)
Liability for omissions to act
General rule: No liability for omissions. I.e., for doing nothing to prevent harm.
o Stovin v Wise highway authority who knew about a dangerous road junction NOT required
to compensate the injured party of a road accident because they owed no duty to road-
users to alleviate the danger.
Exception: if there is a ‘special relationship’. If a person has some sort of power or control over the
other person or object. E.g., lifeguard to swimmer, driving instructor to learner driver. In this case, a
defendant would owe the claimant a duty to act positively to prevent or alleviate harm.
o Home Office v Dorset Yacht Co Ltd
Unit 1: Introduction to Tort and Negligence
Tort = a civil wrong.
A tort involves the infringement of a legal right (or breach of a legal duty).
A tortious act is one which causes harm, injury, or loss to someone because of another person’s
wrongdoing
A person who commits a tort is called ‘a tortfeasor’.
The Law of Tort = the body of civil law which governs what happens when one person sues another
person because of what that person has done.
Claims are brought to the civil courts (County Court and High Court).
There are some general principles which apply to all torts, but each also has its own set of rules
which must be satisfied for a claim to succeed.
The principal function of tort law is compensation. People use the law of tort because they wish to
seek some ‘remedy’ for the wrong they have suffered. These remedies are often financial.
Functions of the law of tort
1. Compensation
2. Deterrence
3. Justice
4. Vindication of Rights
1. Compensation
Primary function of tort law.
Limitations to the law’s effectiveness in this respect: delays involved with litigation (prevents victims
from ever being compensated at the point of need), expense of litigation and lack of public funding,
ability of the defendant to afford the costs of compensation.
2. Deterrence
Potential liability in tort may have a deterrent effect.
Likely to think twice about behaving wrongly of you know you will have to pay damages.
Fears about tarnishing commercial or professional reputation.
Where an insurance company foot the compensation bill, the deterrence effect will be weaker.
3. Justice
Comprises retribution against the wrongdoer and compensation.
Justice may be limited where insurance companies foot the bill.
4. Vindication of Rights
Claimants may care more about principles than compensation.
Claims can be brought in tort to initiate an investigation or to provoke authorities into acting.
Especially true in cases of prevalent large-scale disasters e.g., Grenfell Tower.
The range and scope of tort law
, The law of tort protects against certain types of harm but not others. Not necessarily tangible harm
– some torts are ‘actionable per se’ (do not require claimant to have suffered any actual injury or
damage).
Remedies are not granted simply because someone has suffered harm. Bradford Corporation v
Pickles.
The claimant must show that the loss or injury they have suffered is a type of harm recognised by
the existing law of tort, or they must persuade the courts to extend the law.
Duty of care: A claimant will only be protected under tort law if the court finds that the defendant
owed a duty of care. This can make it difficult to pursue claims against public bodies such as the
police. Instead, a claim under the Human Rights Act 1998 may provide an alternative to an action in
court.
o The HRA 1998 gave effect to many of the rights set out by the ECHR.
o A key provision is s 6 which states that it is unlawful for a public authority to act in a way that
is incompatible with a Convention right. s 7 allows a victim of such a breach to bring
proceedings against the public authority and for the court to award remedies.
o So, where the defendant is a public body, the HRA 1998 may sometimes provide a direct
alternative to a claim in tort.
o Since the courts themselves are public authorities, it can be argued that the courts must
ensure that their judgements are compatible with Convention rights. This allows human
rights to have an indirect influence on the development of the law of tort.
How tort works
In all torts, the law has developed a number of elements that the claimant must be able to prove. If
they can, a ‘case in principle’ is established (a prima facie case). They will succeed unless the
defendant can establish a defence.
In civil cases, the claimant must prove their case ‘on balance of probabilities’ (i.e., more likely than
not). Criminal cases it is ‘beyond reasonable doubt’.
o Lower standard of proof needed as stakes are lower in civil cases (outcomes affect financial
compensation rather than someone’s liberty).
o Also, often harder to satisfy the standard of proof (not every accident is investigated by the
police and witness evidence is not always collected).
Parties
General rule = an individual can be sue or be sued by anyone. Including limited companies and even
partnerships with no legal personality can sue or be sued in their partnership name.
Children dealt with differently. Can sue or be sued, but litigation undertaken by a ‘litigation friends’
(usually parent/guardian). Parents are not liable legally or financially for the torts of their children,
so it is often not financially worth bringing a claim against a child.
When a person dies, any claim (with the exception of defamation) that they had in tort or any claim
against them survives and is taken over by their personal representatives.
Limitation Period
Claims in tort must be commenced within certain times. Set out in the Limitation Act 1980.
Generally, 6 years.
Defamation is 1 year.
Personal injury is 3 years.
The limitation period for claims involving children only begins when the child reaches 18.
,Negligence
= a breach of legal duty of care owed to a claimant that results in harm to the claimant, undesired by the
defendant.
A common law tort. Not contained in an act of Parliament.
Allows claimants to seek remedies for harm caused by carelessness.
A negligence claim will only be successful if the defendant owed a duty of care to the claimant.
The landmark case Donoghue v Stevenson 1932 (“Snail in the Bottle”) established the principles on
which the modern tort of negligence is based. The case established the “neighbour principle”
which should be applied to any novel situation which has not come before the courts before. Lord
Macmillan: “you must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour”.
1. Did the defendant owe the claimant a duty of care? (DUTY)
2. Was the defendant in breach of that duty of care? (BREACH)
3. Did the defendant’s breach of duty cause damage to the claimant? (CAUSATION)
4. Are there any defences available to the defendant? (DEFENCES)
Duty of Care
= a legal obligation imposed on an individual, requiring them to take reasonable care to avoid careless
acts that could foreseeably harm others. It will be owed whenever harm is caused by one individual to
another by a positive act of wrongdoing and that harm is foreseeable physical injury to the person of
physical damage to property.
Duty of care is the first element which a claimant has to prove. A defendant will only be liable in
negligence if they are under a legal duty to take care of the person who is injured.
Established duty situations: situations in which judicial precedent has found that a duty of care
does exist, e.g., doctor to patient, employer-employee, driver to pedestrian (Nettleship and Road
Traffic Act 1988) contractors owe an established duty to take reasonable care to avoid harm to
those who could reasonably be affected by their work. AC Billings & Son v Riden
Baker TE Hopkins & Son Ltd set the precedent that where a defendant’s actions have created a
dangerous situation so that it is reasonably foreseeable that someone may attempt a rescue, the
defendant owes a duty of care to the rescuer. Case in which the defendant (a careless driver) was
liable in negligence to both his injured victim and their rescuer who suffered injuries during the
rescue.
Novel duty situations: situations which have not been brought before the courts before. Courts
should apply the three-part Caparo test to determine duty of care, which refined the
neighbourhood principle in Donoghue v Stevenson.
1. Reasonable foreseeability
2. Proximity
3. Fairness, justice, and reasonableness:
1. Reasonable Foreseeability
Is it reasonably foreseeable that negligence on the part of the defendant would cause harm
to the claimant?
Bourhill v Young no reasonable foreseeability of harm. The defendant was found not to have
owed a duty of care to the claimant who had heard a road accident, walked to the scene,
and claimed damages for the shock and miscarriage she experienced as a result of seeing
blood on the road. Claimant was not a foreseeable victim of the motorcyclists’ negligence.
, 2. Proximity
Do the claimant and defendant have sufficient proximity of relationship to impose a duty of
care on the defendant?
3. Fairness, just, and reasonable
Is it fair, just, and reasonable to impose a duty of care on the defendant?
Marc Rich v Bishop Rock Marine Co Ltd – it would not be fair to impose a duty of care as the
society was non-profit making and operated only for the collective welfare in promoting
safety at sea.
The duty of care and policy
Policy plays an important role in whether a duty of care exists.
Policy factors:
o Deterring certain types of behaviour – ruling in a certain way to deter others from acting in
the same way
o Benefitting the wider public - ruling in a certain way to increase public safety
o Preventing ‘floodgate effect’ – if one case succeeds, many similar cases could be brought
before courts
o Resources – the courts consider whether or not the defendant has the resources to pay
There may not be a duty of care when harm is caused by a public body such as a local authority or
the police.
o If a duty of care was imposed on the police, that duty would be too onerous. Every time a
criminal committed an offence, the police would be liable in a civil claim. Hill v Chief
Constable of West Yorkshire police were exonerated from liability for not stopping a serial
killer as they did not owe a duty of care to an individual as their duty of care is to the public
at large.
o In contrast, in Kirkham v Chief Constable of Greater Manchester Police, the police were
liable. Claimant’s husband had committed suicide whilst in police custody and it was held
that the police owed a duty to pass on information that might have prevented his suicide.
o Where the defendant is a public body, the HRA 1998 may sometimes provide a direct
alternative to a claim in tort. (See above ‘range and scope’ or WS1 prepare task).
When will there NOT be a duty of care owed?
There may be no duty of care when:
1. Harm is caused by a public body, e.g., the police. In this case, the General Exclusionary rule applies.
2. Harm is caused by an omission to act (as opposed to a positive act of wrongdoing)
3. Harm caused is pure psychiatric injury
4. Harm caused is pure economic loss
(Because the Caparo criteria are less likely to be met in these cases)
Liability for omissions to act
General rule: No liability for omissions. I.e., for doing nothing to prevent harm.
o Stovin v Wise highway authority who knew about a dangerous road junction NOT required
to compensate the injured party of a road accident because they owed no duty to road-
users to alleviate the danger.
Exception: if there is a ‘special relationship’. If a person has some sort of power or control over the
other person or object. E.g., lifeguard to swimmer, driving instructor to learner driver. In this case, a
defendant would owe the claimant a duty to act positively to prevent or alleviate harm.
o Home Office v Dorset Yacht Co Ltd
