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Summary Notes - Tort Law (LA124)
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Complete study notes detailing each week of the 1st year tort law module at Warwick.
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Tort Law NotesWEEK 1 – introduction to tort law
• A tort is a civil or private wrong, not a criminal or public wrong - tort law has nothing to do
with the state (so cases are not preceded by R)
• Criminal law - the mens rea (intention) of committing an offence is required for you to be
found guilty
• A tort conversely does not require a person to have the intention for it to be committed
• Civil relations: how we choose to regulate relations in a humane society
• Precedent: based on previous case history
• Tort law has been changed incrementally - the judges develop the law based on precedent,
always developing (organic - alive), can be seen as a continuous narrative
• However this is contentious as certain judges may have certain biases due to their cultural
backgrounds - perhaps more middle class - supreme court justices are all white: not
representative of British society. Also and issue as they are not elected but selected by the
current government - what right do they have to pass legislation?
• They are expert in the law - the argument is well written and well constructed
• Basis of negligence: who owes duty of care, who has breached that duty of care, what
caused the tort, was the damage of a foreseeable type
Negligence: the crucial factors:
• Fault (intention is irrelevant)
• Proximity
• Foreseeability
• Reasonableness
Anthropomorphic - giving something human qualities
The first question with regard to a tort - was there a duty of care? Intention doesn’t matter in the
case of a tort unlike in criminal (mens rea)
If a breach of duty of care is established in a certain situation e.g. if a man drops a banana skin on
stairs - its an act unexpected of a reasonable man - reasonableness is the basis of the tort of
negligence. Did the breach of the duty of care cause the injury (factual causation) - yes in the case of
someone slipping on the banana skin and getting injured.
Someone watching for example a pregnant women - goes into shock at the damage caused by this
breach of duty of care and suffers a miscarriage - still the banana peel dropper is liable under the
breach of the duty of care. The next question is: was the injury incurred foreseeable?
In the interest of limiting liability, the question of foreseeability is posed in most cases. Also
proximity of party is also assessed in terms of the duty of care in order to try and limit liability
further.
Tort law. Policy or Legal Principle?
Tort law has developed incrementally, so has law in general. Giant changes have not taken place
over time. To some the law should be developed as a result of existing legal principle, should not be
up to the supreme court justice's who refer back to policy to do what they feel is correct for the
English legal system
Tort is not to do with punishing people, like with criminal law which functions on behalf of the state.
In tort we are attempting to establish whether the defendant is liable to the claimant - restore the
,status quo through payment of damages (private law vs public) - always looking for compensation
rather than punishment
Is the tort system efficient?
Alternative schemes?
State system of compensation as seen in New Zealand - public are taxed, which goes into pool for
civil compensation for the nation - more efficient than tort law, however it does have to be paid for
(would people accept paying more tax on top of what we already have?) does this system negate
accountability - unlike criminal law which has to see someone convicted (with a moral compass). It
essentially removes the need for proof of liability
Loss distribution: on whom should loss fall? Also does the defendant have deep pockets?
Insurance works on loss distribution in the interest of fairness, or is it? The people who are invested
in the company have to pay for your negligence (everyone receives a smaller dividends payment to
account for the money required to pay for damages in a case).
Protection of interests - such as bodily integrity (trespass to person), or reputation and privacy
(defamation)
Deterrence - effect of insurance on defendant's conduct? The possibility of a civil sanction (damages)
will cause defendant to alter conduct and avoid inflicting damage. This might apply where
professional reputations (e.g. doctors) are at stake. General or market deterrence - aims to reduce
costs of accidents, so these are imposed on participants in accident causing activities
Corrective justice: responsibility for consequences of action, different from loss distribution as it
allocates ultimately those who caused the resulting loss to pay the compensation. This differs to loss
distribution by allocating ultimate responsibility to those who cause the resulting loss
Retribution in tort law is in terms of libel (defamation or slander) and intentional torts. C may derive
satisfaction from knowledge that D has been caused inconvenience. There is an obvious overlap with
the purpose of sentencing in the criminal procedure.
General characteristics of tortious liability: fault, foreseeability, proximity, reasonableness. In most
cases liability is based on fault, although some require intention or recklessness (such as trespass to
person)
Week 2 – the tort of negligence and duty of care
The law of negligence emerged during the industrial revolution in the 19th century - moving from an
agrarian society to a mechanised society centred on large scale industry.
The dangers to health and safety were huge during this period - terrible injuries were prevalent as a
result of collapses in coal mines for example. Cotton mills - mechanised looms were lethal. People
lost limbs after getting them caught in the mechanised looms - occurred daily.
Most people weren't compensated for their injuries - livelihoods were ruined as these people
couldn’t afford to bring legal action against large private companies. Employers guarded against the
possibility of facing action, by rigorously defending themselves outside of court
Negligence and the industrial revolution:
, The unholy trinity of defences:
1. Common employment - injured by a fellow employee at the company, means that the
employer is not liable
2. Volenti (consent) - the claimant has consented to the risk of injury (usually through contract)
3. Contributory negligence - did the claimant contribute to their own injuries by also being
negligent (if so then received no compensation)
Negligence and the long Nineteenth Century
1. Relationship between contract and tort - in tort a duty is imposed on a person by the court -
can be on parties who have never even met. In contract the duty must be voluntary and
agreed between two parties that know one another.
2. Development of non-contractual tortious obligation - obligation not depending on the
contract between defendant and claimant
3. Physical proximity between claimant and defendant - such that it is foreseeable that a
negligent action will cause harm to said person within that proximity
Donoghue v Stevenson [1932] AC
1. Duty owed by manufacturer to consumer
2. The neighbour principle - describe the necessity of proximity (lord Atkin uses the parable of
the good Samaritan in Luke, and plants it into the forefront of English law), exemplified by
Home office v Dorset Yacht Co. [1970]
3. The foreseeable claimant
Issue - Donoghue didn’t have a contract with the café owner or the manufacturer. The café owner
had a contract with the café, meaning the café had a contractual obligation to take care that the
contents of the bottle was safe. The damage however was caused by the manufacturer, as the
bottles arrived to the vendor sealed. The manufacturer of a product owes a duty of care to the
ultimate consumer of their product.
Plasgraf v Long Island Railroad [1928]
This case is a good example of foreseeability and proximity. In this case, the train attendant owed a
duty of care to the person with the suitcase, to not drop the suitcase, but his actions were not
foreseeable in relation to the plaintiff (Plasgraf).
Week 3 – duty of care post Donoghue vs Stevenson
The neighbour principle has been taken as obiter dictum in that it has been expanded far beyond its
original scope - which was to protect the consumer.
Anns v Merton: 2 stage test for existence of duty of care between alleged wrongdoer and person
who suffered damage, is there sufficient relationship of "proximity or neighbourhood such that, in
the reasonable contemplation of the former, carelessness on his part may be likely to cause damage
in which a prima facie duty of care arises."
Caparo Industries plc v Dickman [1990] 2 AC 605
Saw the formation of the Caparo indictment test:
• Foreseeability of harm
• Proximity of parties
• Fair, just and reasonable to impose this duty (policy) - ultimately in a novel duty scenario it
comes down to the judge on whether it is fair, just and reasonable
Effect of Michael v Chief constable of South wales:
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