Law of Tort
Introduction
– Negligence Claim (Bringing the claim against another person who has injured you or has caused you harm)
Need to show damage – show that you have suffered damage that is recognised by the law i.e. physical
(personal) or psychological injury.
– What would I get if I bring a negligence claim?
Compensatory damages
Pecuniary (financial losses)- loss of earning/earning capacity; expenses (other circumstances – expenses made
because of injury)
Non Pecuniary – (non-financial claim) compensation for the injury itself – the law puts a price on this (Guidelines for
the assessment of general damages in personal injury cases book), pain and suffering, loss of amenity (stop doing
things that you enjoy)
Aim of compensatory damages is to put the victim in the position before the negligence occurred (incident).
Functions of negligence liability:
1. Compensation – what you get from your claim (outcome); compensate people for their injuries BUT is not doing
this properly as it is compensating those have injuries as they can blame somebody else but everyone else is left
with what they can get from the state (not much). Also, you can’t always put things right with money
2. Deterrence = encourages people to behave in a safer manner –to take care, encourages doctors to take
reasonable care. Encourage safe practices. Always a concern that it could lead to over-deterrence effect” health
and safety gone mad” – don’t want your doctors to be scared where they take 20 tests which they didn’t need just
to cover their backs. We want to deter dangerous conduct but we don’t want tort law to go far that it puts everyone
off in engaging in beneficial activates – need of balance.
Compensation Act 2006 – reason this was introduced to address the concern on this “compensation culture” –
before it was introduced research shows that we don’t have a compensation culture where people are not suing
100x more than what they used to 20 years ago. We have a public perception that we have one which is fed by
the media – still put off in engaging in activities in case they get sued.
Purpose of the act =address the public concern. Courts now have to take into account whether liability would be
contrary to the public interest by preventing desirable activities. When the courts look at a negligence claim they
have to think about – whether holding D liable would put either put people off in engaging in beneficial activities =
courts have always done. Aim = address compensation culture.
3. Vindication = for the loss of claimant’s – purpose of bringing a claim = what went wrong and hold someone
accountable – want that person to own up “I was at fault”. No about the money but holding someone to account =
what some individuals want to get out of the tort system.
4. Corrective Justice = (Aristotle) –Individual justice = looking at you – what is just in the situation. When one person
harms another person by their wrong doing that they have moral responsibility to repair that harm – negligence
liability corrects the injustice by requiring them to pay compensation. Negligence law looks at what is fair between
the victim and wrongdoer – moral responsibility.
– The place of Insurance –
Injury = defendant doesn’t pay but their insurance does (e.g. car accident, employer injures employee = employer
liability insurance). If we didn’t have insurance, then the defendant maybe wouldn’t have been able to pay the
compensation. Therefore, insurance backs up the negligence system. It allows the defendant to spread the cost of
injuries and accident so one person doesn’t bare to much of a burden.
Courts have taken insurance into account to develop the law, to make the decision so that they are able to hold
someone liable.
Nettleship v Weston (1971) Lord Denning Defendant was a learner driver (2nd/3rd driving lesson – wasn’t
expected to be good at driving) Caused an injury. In holding her liable, the courts said that you are expected to
drive as a reasonably competent driver – you need to meet that standard. Unfair to her – not morally to blame.
But the courts held her accountable as a competent driver because of insurance (in part) – “a person injured by a
motor car shouldn’t be left to bear the loss on his own, but should be compensated out of the insurance fun. The
fund is better able to bear it than he can. But the injured person is only able to recover if the driver is liable in law.
So the judges see to it that he is liable unless he can prove care and skill of a high standard. Thus we are, in this
branch of the law, moving away from the concept “no liability without fault” – beginning to apply the test “on
whom should the risk fall”. Who should bare the loss?
Gilliam v West Hertfordshire Hospitals NHS Trust [2003] – D was a hospital holding a fundraising activity day for
the public day – contracted people to run the activities and one of their contractors ran a splat wall – victim was
injured on the splat wall. Obvious person to hold to account is the one running the splat wall but they didn’t have
insurance – sued the hospital who organised the day and contracted with the splat wall. The hospital didn’t take
enough care to ensure that the contractor had insurance – had a duty to check every contractor had insurance.
Putting insurance in the centre – moving it away from have a got a responsibility not to injure you – I’ve got a
responsibility to make sure that this person has got funds just in case they injure you. Making it all about the
compensation
The Elements of a Negligence Claim -
Aim of Tort = Remedy –
,1. Damage – that is recognised by the law
2. Duty of Care – Defendant owed a duty of care
Should the defendant be taking care? Not asking if they did take enough care. Everyone you physically interact
with you owe a duty of care to them.
Vicarious liability = liability we put on an employer for the tort committed by their employee in the course of their
employment. Employer not at fault.
Lister v Hesley Hall Ltd [2002] the employer ran a residential school for children who had emotional and
behavioural difficulties, one of their employees was a housemaster in the residential facility – in the course of
employment he sexually abused a number of the children. In criminal law he would be punished for that but
the victims are seeking compensation – did he do this in the course of his employment = his job is to take care
of them not abuse them. But the court held the employer liable as it was so closely connected to his job that it
was fair to hold the employer liable.
Morrison’s – case where customer went to petrol station checked his tyre pressure, went up to the kiosk, same
time as paying – can I do some printing? Person behind the kissed took an offense from him and in a racially
motivated attack – attacked and assaulted him and sadden come back. Compensation = from their employer
as it was done in the course of employment as he was responding to the customer.
“All forms of economic activity carry a risk of harm to others, and fairness requires that those responsible for
such activities should be liable to persons suffering loss from wrongs committed in the conduct of the
enterprise” = employer running the business makes profit so should bare the risk – ones that should pay.
This is fair because it means injured persons can look for recompense to source better placed financially that
individual wrongdoing employees. It means also that the financial loss...can be spread more widely, by liability
insurance and higher prices. It also encourages [employers] to maintain standards of “good practice” by their
employees”. (Majrowsky v Guy’s and ST Thomas’s NGS Trust [2007] Lord Nicholls). = Pick employees more
carefully, offer more training.
3. Breach of duty
Did they take enough care? 2 stages = what is the standard of care? And did they fall below that standard? Only
need to take reasonable care.
4. Causation
Factual Causation = But for their negligence would I have suffered this injury?
Legal Causation = Damage to remote? Was this kind of damage reasonably foreseeable?
Break in the case of causation
5. Defences
Contributory negligence
Illegality
Voluntary assumption of risk
– Alternatives to the tort system –
1. Pearson Committee 1978 – Set up in 1972 – purpose to undertake a survey on accident compensation in England
and wales = result of survey showed that 6 and half percent of people physically injured in accident = get
compensation from the tort system. Tort system = expensive and inefficient - every pound that gets paid out in
compensation it costs 85p to bring the claim (85% is running the cost of the system).
Reforms: more emphasised on social security - more provision from the state and have tort law to back that up. No fault
compensation scheme for people injured in road accident = not happened (if you are injured = still have to establish
whether the driver was negligence and then go through a claim and insurance).
2. No fault liability
New Zealand – Since 1974 they have a no fault compensation scheme – (no matter what you are doing or
where you are when you’re injured; no matter how the injury happened; no matter what age)
But instead of getting full loss of earnings you only get 80% of the loss of earnings. The money comes from the people
who create the risk e.g. insures, employers and general taxation. But doesn’t cover people who are born with disabilities
or suffer disease that just occurs in their life = low level of social security = inequality.
Motor Insurers’ Bureau – no fault liability – scheme where car insures contribute to a general fund so that if you
are injured by an uninsured driver or untraceable driver = get compensation from that fund.
Criminal Injuries compensation – injuries for violent crimes compensation. Claim has to be to between 1,000
and 500,000 and have to be out of work for 28 weeks = eligible for a claim.
3. First party insurance – everyone takes out their own insurance for own loss of earnings and injuries. Criticism = you
would need to have the money to afford insurance. Those who are most exposed to physical risks at work = those
who are least able to afford the insurance.
– Future directions of the Tort law
1. Human Rights Act 1998 = how the government responsible to protect human rights has shaped tort law.
2. Social Action, Responsibility and Heroism Act 2015 (“SARAH” Act)
Idea = public perception of a compensation culture – put off from doing things such as street fairs because
they are worried they will get sued. Act introduced to say that when a court is deciding whether a person is
negligence they should think about whether the person was acting in the benefit of society or any of its
members, or think if the person was acting in a responsible way and whether the person was acting heroically
by intervening in an emergency to assist an individual in danger.
Criticism = reasonable care shouldn’t be lowered due to the fact they are doing something good i.e. benefitting
society.
,Damage
– Have they suffered actionable damage?
The kind of loss or damage that can form the basis of a negligence claim = physical injury, property
damage, financial loss
Hinz v Berry [1970] = claimant was a lady who went out with her husband and children – driving and
stopped and she went to pick some flowers with one of the children. Defendant crashed his car into the
family’s van. Husband died, most of her children was injured. She suffered emotional distress in various
forms = suffered grief (husband died). Court said in English law no damage is awarded for grief/sorrow
caused by a person’s death = grief/sorrow/worry/difficulties = not actionable losses. Damages = medically
recognised psychiatric illness = depression/post-traumatic stress disorder/pathologic grief disorder.
Rothwell v Chemical & Insulating Ltd [2007] – Looks at physical injury – Claimant was suffering from an
illness called plural plax = thickening of the lining between your lung and chest cavity – doesn’t produce
symptoms but the claimant is worried about this as he has been exposed to expostos relating cancer.
Courts = not damage “damage = concept of being worse off, physically or economically, so that
compensation = appropriate remedy. It doesn’t mean simply a change in physical condition which is
consistent with making one better, as in the case of a successful operation, or with being neutral, having no
perceptible effect upon one’s health or capability”
Why are some losses recognised as actionable damage = no symptoms then there’s nothing to
compensate? Grief and anxiety = concern for over compensating, over-deterring = putting too much liability
on the defendants as to everyday things and more serious illnesses. Has to be over and above everyday
illness.
, Duty of Care
– Looking at the importance of the relationship between the claimant + defendant.
– Legal duty to take reasonable care not to cause harm to another person through your acts or omissions.
– In most cases whether a duty of care is owed is now dealt with by precedent e.g. drive owe a DOC to road
users (Nettleship v Weston), employers
– If a situation isn’t covered by a precedent, then the courts now apply “Caparo tri-partite test” to decide
whether new duty of care should be established = new precedent then exists.
The development of the duty test – how we got to the Caparo test?
– FIRST PRINCIPLE: Donoghue v Stevenson [1932] = Mrs Donoghue went to a café with her friend who
brought her a ginger bear float (with ice cream) – she pours her ginger bear – out comes a decomposed
snail = gets an upset stomach and becomes sick. Brings a negligence claim = didn’t have Caparo test so
you had to look at precedent – trying to sue the manufacturer of the ginger bear but there was no precedent
saying that the manufacturer owed a duty of care to the final customer = no duty. Mrs Donoghue doesn’t
have a contract with anyone – friend had a contract with the café – no remedy. She didn’t give up –
negligence claim went up to the HOL = “it would be little short of outrageous to make the manufacturer
responsible for the final consumer for every bottle they produce can’t check the content of every bottle”
(looking at the interest of the business). Majority = DOC but no precedent = Lord Atkin “In English law there
must be and is, some general conception of relations giving rise to a duty of care, of which the particular
cases found in books are but instances
Neighbourhood principle = “must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who is my neighbour? Neighbour is the
persons who are also closely and directly affected by my acts that I reasonably have them in contemplation
= Test of proximity
Significance of test = establishes a general principle, we no longer have to find a previous example of a
duty, bring a new case and say well this defendant ought to have D in contemplation. (Manufacturer in D v
S consumers are so closely and affected by the manufactures act so they ought to reasonably have them in
contemplation = manufacture owe a DOC to Mrs D). 2 elements of the general principle = reasonable
foreseeability
– Improve the test:
Anns v Merton London Borough Council [1978] Lord Wilberforce’s 2 stage test for duty
Claimants were tenants of a block of flats, where they moved in and noticed some cracks in the walls and
the floor started to slope. Claimants are not happy = damage to flat – reason why they found this is
because the foundations were too shallow as when the flats were built the foundations weren’t digged
deeper. So they brought claim to the council as builder couldn’t pay. They have the power to inspect the
foundations when it was being built. Claimants said that either you didn’t inspect the building or you didn’t
notice it was too shallow = negligence
Apply the Donoghue v Stevenson “neighbourhood” test = tenants so closely and directly affected by the
council’s inspections of the foundation during the building process that they owe a duty = not a very close
relationship between the council who can inspect what the builder is doing, where the builder sells it on
and they rent it on.
HOL “reached the state that it is not necessary to bring the facts of that’s situation within those of
previous situation in which a duty if care had been held to exist.:
Improve the neighbourhood principle – approach question in 2 stage = ask whether there was a sufficient
relationship of proximity or neighbourhood such that in the reasonable contemplation of the defendant,
carelessness on his part may be likely to cause damage to the claimant, in which case a prima facie duty of
care arises.
Yes, to first question then we need to go on the 2nd question = any considerations which ought to
negative or to reduce or limited the scope of the duty to the class of persons to whom it is owed or the
damages to which a breach of it may give rise.
1. Is there a relationship of proximity – foreseeable to the defendant that the claimant could suffer damage =
duty
2. But are there any considerations that ought to go against in establish a duty = public policy considerations
(any reasons why there shouldn’t be a duty)
What is the significance of the development that took place with Lord Wilberforce’s 2-stage test rather than
the neighbourhood test? Its treating proximity and foreseeability as the same thing (first stage). Then the
second stage puts the onous now on the D as they have to come up with any reasons that ought to go
against there being a duty. Creates a presumption = D owes a duty of care unless they can come up with
broad societal public policy reasons why they aren’t liable.
How did it impact on negligence law? Huge expansion – new duties being recognised. This led courts to
worry and rain it in.
What was the effect of the decision in Murphy v Brentwood District Council? HO uses the 1996 Practice
Statement overrule one of its previous decisions i.e. Anns based on the facts. HOL said there is no Doc
in this situation – foreseeable to the builder that if the foundations aren’t deep enough then future
