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1st Class Tort Law Notes
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Lawof
Tort-Introduction
Civil
wrong
which
causes
harm
to
one
of
the
following
interests:
Examples
• Mental
Security
• Bodily
Integrity
• Economic
Interests
• Personal
Freedom
(false
imprisonment)
• Reputation
(defamation)
• Malicious
Prosecution
• Intellectual
Property
• Privacy
• Land
and
personal
property
harm
(civil
theft,
trespass,
nuisance
etc)
Conduct
The
defendant
may
be:
1. Malicious
a. Very
often
the
defendant
must
be
found
to
have
been
malice
if
he
is
to
be
found
guilty.
b. Malicious
(false)
Prosecution-must
be
shown
to
be
malicious
if
the
defendant
is
to
be
found
guilty.
2. Intentional
3. Negligent
4. Innocent
a. Sometimes
you
can
be
liable
even
if
you
are
innocent
e.g.
keeping
a
dangerous
animal,
it
being
let
out
by
someone
else
and
hurting
another
person.
Objectives
1. Correct
wrongs
(making
employers
vicariously
liable
for
the
actions
of
their
employees
during
the
course
of
their
employment)/Promote
morality
2. Vindicating
rights
3. Providing
retributive
justice-‐this
is
here
to
prevent
blood
feuds
or
violence
as
a
claimant
will
be
less
likely
to
do
this
if
a
claim
in
court
can
solve
it.
4. Deterring
wrongdoing-‐often
to
do
with
systematic
wronging
such
as
employers
not
looking
after
the
health
and
safety
of
their
employees.
5. Promoting
economic
efficiency-‐liability
rules
are
promoted
as
long
as
the
cost
of
the
deterrence
is
less
then
the
cost
of
the
harm.
6. Compensating
victims
e.g.
accident
compensation.
The
aim
is
to
put
the
claimant
back
to
the
same
position
he
was
in
before
the
tort
was
committed.
This
may
not
always
be
possible
e.g
giving
the
victim
money
after
losing
an
arm.
There
is
also
fear
or
indeterminate
liability
which
means
that
things
such
as
compensation
for
mental
distress
is
rarely
awarded.
7. Spreading
loss
in
a
socially
fair
way
such
as
Vicarious
liability-‐this
includes
making
employers
liable
for
accidents
caused
by
employees.
, o Criticism-Ignores
whose
fault
it
was
and
also
it
is
not
fair
such
as
careful
drivers
having
to
pay
higher
premiums
8. The
employer
takes
out
insurance
and
passes
the
premium
cost
onto
customers
in
the
price
of
goods.
In
this
way
the
cost
of
compensating
victims
is
spread
around
the
community.
•
• Deficiencies
of
tort
in
personal
injury
cases:
o The
person
is
responsible
for
their
own
injury-no
one
to
sue.
o A
lot
of
the
money
owed
in
compensation
is
eaten
up
by
administration
such
as
in
the
courts
o New
Zealand
has
scheme
which
allowed
people
to
claim
accident
compensation
from
a
governmental
body-there
is
no
tort
action.
Tort
vs.
Crime
• Tort
generally
seeks
to
compensate
victims,
criminal
law
seeks
to
punish
wrongdoers.
• However,
the
criminal
courts
can
make
compensation
orders
such
as
from
the
Sentencing
Act
2000.
• Also,
civil
courts
can
award
vindicatory
damages/exemplary
damages
(punish
the
wrongdoer)-‐Ashley
v
Chief
Constable
of
Sussex
(2008)
• Usually
a
rule
of
common
law
that
you
cannot
be
punished
twice
for
the
same
crime.
Tort
vs.
Contract
• Contract
is
there
to
give
the
victim
of
a
breach,
the
benefit
of
the
bargain.
• Tort
is
there
to
restore
the
victim
to
the
position
he
was
in
before
the
tort
was
committed.
This
is
not
always
physically
possible
so
often
monetary
compensation
is
used
to
represent
the
loss
suffered.
• Concurrent
liability
can
come
about-‐being
sued
for
negligence
and
breach
of
contract
separately.
You
would
do
this
due
to
certain
time
limitations
or
else
to
try
and
attain
more
damages.
Tort
vs
Unjust
Enrichment
• Unjust
enrichment
presupposes:
a. The
defendant
has
been
enriched
by
the
receipt
of
a
benefit.
b. That
he
has
been
enriched
at
the
claimants’
expense.
c. It
would
be
unjust
for
him
to
retain
that
benefit.
• Damages
measured
by
the
amount
of
gain
the
defendant
has
been
enriched
by
as
opposed
to
the
loss
of
the
claimant.
• Examples-A
shop
giving
you
back
too
much
change.
Recognition
of
New
Torts
• Invasion
of
privacy/Breach
of
Confidence
(Campbell
v
MGN-‐2004)
• Appropriation
of
another’s
image
(Douglas
v
Hello!-‐2005)
Remedies
1. Damages
a. Compensatory
b. Punitive/Exemplary-Court
wishes
to
punish
defendant/deter.
, c. Nominal-Just
to
show
who
won
the
case,
no
real
loss.
d. Contemptuous-Cost
of
bringing
claim
is
more
than
damages-‐1
penny
e. Aggregative-The
court
expressing
its
disapproval
2. Injunctions
a. Prohibitory-Discretionary
b. Mandatory-Undo
a
wrongful
act
3. Personal
Injury
a. General
Damages-Non-‐quantifiable.
Given
for
the
pain,
suffering
and
loss
of
amenity.
Court
makes
its
own
assessment.
b. Special
Damages-quantifiable
loss
e.g
broken
watch
in
car
accident.
, Negligence
“A
breach
of
a
legal
duty
to
take
care
which
results
in
damage
to
the
claimant”-W.H
Rogers
N.B
Elements
to
Liability
1. Legal
duty
to
care-‐there
as
a
control
device.
2. Breach
of
the
duty-‐must
meet
the
standard
of
the
reasonable
person.
If
an
insane
person
causes
harm-we
would
expect
less
of
standard.
3. Damage
caused
by
the
breach-work
out
whether
the
defendant
was
“a
cause”
of
the
harm
rather
than
the
“only
cause”
of
it.
If
there
is
more
than
one
defendant,
each
one
is
fully
liable
for
the
damage
caused
(liability
insolivum),
however
full
satisfaction
of
a
claim
ends
all
the
other
claims.
4. Damage
must
not
be
too
remote-another
control
device.
If
a
consequence
is
unforeseeable
than
you
cannot
recover
from
it.
5. Defences
to
liability-this
includes
contributory
negligence
(claimant
contributed
to
it)
or
consent.
The
Duty
of
Care-USE
THIS
IF
THE
SCENARIO
IS
SIMPLE,
OTHERWISE
USE
CAPARO
• After
Donoghue
v
Stevenson,
a
general
principle
was
developed
to
work
out
whether
there
is
a
duty
of
care.
• You
must
take
reasonable
care
to
avoid
acts
or
omissions
which
you
can
reasonably
foresee
would
be
likely
to
injure
your
neighbour-
Lord
Atkin.
• Ever
since
their
has
been
a
duty
of
care
between
the
manufacturer
and
the
consumer.
• The
Anns
Test-Lord
Wilberforce-Merged
the
neighbour
principle
into
one.
Considered
one
after
the
other.
o 1.
Is
there
a
sufficient
proximity
between
the
wrongdoer
and
the
victim
that
in
the
reasonable
contemplation
of
the
wrongdoer,
carelessness
on
his
part
would
cause
damage
to
the
victim?
2.
It
is
necessary
to
consider
any
factors
which
reduce
or
limit
the
scope
of
the
duty.
o Objections
It
led
to
the
defendant
needing
to
justify
why
there
was
no
duty
of
care
as
opposed
to
the
claimant
showing
that
there
was
a
duty.
Not
as
easy
to
look
at
policy
impact
it
will
have
on
society
e.g.
opening
the
floodgates.
Not
sure
what
is
meant
by
“proximity”.
Yeun
Ken
Yeu
said
it
could
be
misinterpreted
as
pure
foreseeability.
House
of
Lords
overturned
it
in
Murphy
v
Brentwood
• N.B-The
Caparo
Test
(Lord
Bridge)-Considered
all
at
once-Law
should
develop
novel
categories
of
negligence
as
opposes
to
a
massive
extension
of
a
prima
facie
duty
of
care.
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