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Unit 5 - Employers' Liability + Vicarious Liability
Unit 2 - Causation + Defences
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TORT LAW
1 – Introduction + Duty + Breach
Tort c1 s1-6 & Horsey&Rackley c1
What is Tort?
Historically tort law developed as a means of regulating & balancing the interests of people who often lived in
close proximity in rural society
- law was focused on protecting an individual’s right to property & on allowing a citizen to protect their own
personal integrity from deliberate interference from others
- after industrialism this shifted towards providing compensation for injuries often caused by carelessness in
an increasingly mechanised society
➔ provides the main way for victims of ‘wrongs’ to achieve redress
No problem suing parents!
- money comes from parents’ insurance not bank accounts!
‘tort’ = ‘wrong’
A tort involves the infringement of a legal right/breach of legal duty, giving rise to a claim in the civil courts
- tort law = a collection of civil wrongs for which the law provides a remedy
Boundaries between torts are fluid & popularity can change:
- old torts can die out – e.g. the rule in Rylands v Fletcher [1868]
- new ones emerge – e.g. tort of misuse of private information in Vidal-Hall v Google Inc [2014]
Terms:
- a tortfeasor commits a tort & their liability is described as tortious
- a claimant (prev. 1999 plaintiff) brings a case against a defendant
People use the law of tort to seek some remedy for the wrong they have suffered.
There are significant differences between criminal and tortious liability (despite certain situations resulting in
both arising):
TORT CRIMINAL
tort claims are brought by injured person seeking a criminal actions are usually brought by public official
remedy (usually damages) (e.g. CPS) rather than victim
main function is compensation of victim main function is punishment of offender
dealt with by civil courts (county court or High dealt with by criminal courts (magistrates’ court or
Court) Crown Court)
Tort can also overlap with contract law:
TORT CONTRACT
both civil claims brought in County Court or High Court
claimants will usually seek damages
main function is to compensate claimant for loss suffered due to defendant wrongdoing
liability does not depend on any party consensus – obligations fixed by contract terms – sometimes
determined by rules dictating whether defendant implied by law, but usually expressly agreed
wrongdoing constitutes a tort
much wider scope of liability – obligations imposed need contractual relationship before claim for breach
by law, owed to world at large of contract – only parties can sue
obligations imposed by law obligations voluntarily undertaken
aim of damages is to put claimant into position aim of damages is to put claimant into position would
would have been in had the tort not been have been in had the contract been properly
committed performed
Sometimes a claimant had potential claims in both contract and tort – the law of tort can impose obligations
concurrently to any arising in contract
Range & Scope of Tort Law
Different types of harm:
The claimant must show the loss/injury they have suffered is a type of harm recognised by the existing law of
tort, or otherwise persuade the courts to extend the law to protect them
- physical injury, death, psychiatric injury, damage to property, financial loss etc
- doesn’t have to be tangible harm; some torts are ‘actionable per se’ – do not require any actual
injury/damage, only infringement of a legal right protected by the law of tort
Needs to be covered by existing tort!
- e.g. Bradford Corporation v Pickles [1895] – despite clear evidence drainage work was attempt by Pickles to
force Bradford Corporation to pay to desist, House of Lord refused to grant injunction
o not caused any harm protected by tort – improper motive irrelevant!
Tortious liability may be limited where thought to be undesirable for policy reasons
- in some cases of negligently caused harm, courts have declined to find that the defendant owed the
claimant a duty to take care – if no duty is owed, claimant has no remedy
o e.g. when using negligence to pursue claims against public bodies such as police
Tort Law & Human Rights Act 1998
Many of the rights established by the ECHR have been given effect in English law by the Human Rights Act 1998
including:
- the right to life; ECHR, Article 2
- the right to liberty; ECHR, Article 5
- the right to a fair trial; ECHR, Article 6
- the right to respect for private and family life; ECHR, Article 8
- the right to freedom of expression; ECHR, Article 10
s.6 HRA 1998 – it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
- s.7 – allows a victim of such breach to bring proceedings against the public authority
- s.8 – gives the court power to award remedy for such breach – may include an award of damages provided
the court is satisfied a payment of damages is necessary to afford just satisfaction to the victim – s.8(3)
HRA 1998 may provide a direct alternative to a claim in tort where the defendant is a public body
HRA 1998 may also indirectly influence the development of tort law – as courts are themselves public
authorities, it can be argued s.6 means that courts must ensure their judgements are compatible with
Convention rights, even in cases concerning only private individuals
Potential ways HRA 1998 impacts tort:
1. ‘inspired law change’ in some areas – particularly re: privacy
2. not extended existing causes of action to reflect Convention rights – seen in both negligence and nuisance
3. largely left to judicial discretion to determine impact on individual cases
defamation, privacy & human rights – question of how to balance conflicting rights:
- defamation protects a claimant’s right to their reputation (Article 8), but may limit the defendant’s freedom
of speech (Article 10)
Wainwright v Home Office [2004] – Influence of human rights on the protection of privacy in tort rule has not
resulted in the creation of a single tort protecting all aspects of privacy:
- claimant visiting prisons was strip-searched in circumstances causing distress & embarrassment – but not
covered by existing law of tort
- (couldn’t use HRA 1998 as before came into force)
- tried to use Article 8 to persuade court to extend existing law of tort to cover distress & embarrassment
- court declined to identify privacy as a single protected interest requiring the creating of a single and distinct
tort of interference with privacy
While courts were not willing (early on?) to recognise any new torts, they were willing to modify existing torts to
ensure that they are HRA compatible:
- e.g. Campbell v Mirror Group Newspapers [2004] – House of Lords refused to recognise new cause of action
on basis of HRA but amended existing action to protect claimant’s privacy
- more recently seem to be willing to recognise new torts however; Vidal-Hall v Google Inc [2014] – misuse of
personal information developed as a distinct tort
How Tort Works
In all established torts, the claimant must prove a number of elements to establish a case in principle (a prima
facie case).
- burden of proving defendant has committed a tort
This will succeed unless defendant can establish a defence – can raise a number of defences, some of which
apply to all torts (general defences), others specific to only one tort
- burden of establishing defence
Claimant must only prove their case ‘on the balance of probabilities’ (i.e. more likely than not)
- lower standard of proof than in criminal cases – defendant usually faces only financial penalty, not loss of
liberty
- difficult to satisfy standard of proof – victims of road accidents & factory workers injured in work accidents
Parties – generally an individual can sue or be sued by anyone under tort
- child (<18) – can sue/be sued but will conduct litigation through ‘litigation friend’ (often parent or guardian)
o parents not liable legally or financially for their children’s torts often not financially worth bringing
claim against child defendant!
- limited company (‘Ltd’) – has own legal personality & can sue/be sued in its corporate name
- partnerships (‘firms’) – procedural litigation rules allow to sue/be sued in their partnership name (even
though only collections of individuals with no legal personality)
- dead ppl – any claim (excluding defamation) in tort they had/had against them survives & is taken over by
personal representatives
, TORT LAW
1 – Introduction + Duty + Breach
Tort c1 s1-6 & Horsey&Rackley c1
Limitation period – any tort claim must be commenced within certain time limits in the Limitation Act 1980
- generally six years from when cause of action arises (usually when damage occurs)
some exceptions e.g. –
- defamation claims: within one year of publication of defamatory statement
- personal injuries: within three years of date of injury
- where claimant child (<18): timer only starts to run when child reaches 18
Vicarious liability – if an employee commits tort in the course of their employment, the injured party can sue
the tortfeasor’s employer as well as/instead of the employee
Tort law does not protect its recognised interests equally – sexual harassment/individual’s interest in their
private life have been traditionally only weakly protected compared to physical injury/damage to individual’s
reputation
Policy & Tort
‘Policy’ is sometimes used to describe all factors that may affect how a case should be decided & how law should
develop -> every legal argument is therefore argument of policy!
More often –
‘Policy’ is used to describe a particular subset of factors/arguments courts may employ while deciding cases –
quasi-legislative function
- ‘non-legal’ judicial considerations i.e. not based on a recognised legal principle/established precedent or
arguments of justice/morality
- e.g. ‘what would be the consequences for society at large for imposing liability in situations like this?’
- controversial whether courts should base decisions on policy factors!
(more info on whether or not should do so in Horsey and Rackley c1)
Corrective Justice & Compensation
Tort law seeks to protect an individual’s interests both prospectively (prevent/deter further harm) and
retrospectively (through provision of compensation for past harms and the distribution of losses)
- many functions: (corrective) justice, compensation, deterrence & (less often) vindication (inquiry and/or
publicity)
Corrective justice
This requires fault & causation; defendant must have
- factually caused claimant to suffer those losses
o defence: ‘it was nothing to do with me!’
- were at fault in so acting
o defence: ‘I couldn’t help it!’
also rests on individual responsibility – can also be to blame for a self-chosen risk
Woodroffe-Hedley – no great legal significance, little-known & unreported
- negligence claim following mountain climbing accident – Cuthbertson had falling below standard of care
expected of a reasonably competent & careful alpine guide, resulting in Hedley’s death -> claimant (young
son) awarded £150k damages – corrective justice
- more information in Horsey and Rackley c1
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