unit 1: introduction to tort
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1. The range and scope of tort law
1.1 Different types of harm
1.2 Policy limitations on the protections of tort law
1.3 Tort and human rights
2. How tort works
2.1 Parties
2.2 Limitation period
3. Introduction to negligence
4. Duty of care
4.1 Established duty situations
4.2 Novel duty situations
4.2.1 The neighbor principle
4.2.2 The neighbour principle refined
4.2.3 The duty of care and policy considerations
4.2.4 The test for duty in novel situations: conclusions
4.3 Liability for omissions to act
4.3.1 The general rule: no liability for omissions
4.3.2 What duty is owed if you decide to act although you are not under a duty to act?
4.3.3 Exceptions: Occasions when there is a duty to act positively
5. Breach of duty
5.1 Standard of care
5.1.1 Special standards
5.1.2 Special standards: the skilled defendant
5.1.2 Special standards: the under-skilled defendant
5.1.3 Special standards: Children
5.2 Relevant factors in determining the standard of care
5.2.1 Magnitude of the risk
5.2.2 Cost and practicability of precautions
5.2.3 Defendant’s purpose
5.2.4 Common practice
5.2.5 The current state of knowledge
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, 5.2.6 The limitations of ‘reasonable’
6. Proving breach of duty
6.1 Res Ipsa Loquitur (’the thing speaks for itself’)
6.2 Section 11 of the Civil Evidence Act 1968
1. The range and scope of tort law
A claim under the Human Rights Act 1998 may provide a direct alternative to an
action in tort - where the defendant is a public body.
Generally, the Human Rights Act 1998 may indirectly influence the development of
tort law.
1.1 Different types of harm
The claimant must show that the loss or injury he has suffered is a type of harm
recognised by the existing law of tort.
A claimant does not always have to suffer tangible harm (such as injury or personal
damage).
Some torts are said to be ‘actionable per se’ (i.e. do not require the claimant to have
suffered any actual injury or damage). The infringement of a legal right that is
protected by the law of tort is all the ‘harm’ that the claimant needs to show.
Examples:
Battery
Assault
If a claimant is unable to show that he has suffered a type of harm which is
recognised by tort then his claim in tort will fail unless he can convince the court to
extend the law (Bradford Corporation v Pickles).
1.2 Policy limitations on the protections of tort law
In some cases of negligently caused harm, the courts have declined to find that the
defendant owed the claimant a duty to take care. If no duty is owed, the claimant has
no remedy. These restrictions have been imposed for policy reasons.
Sometimes, the rigidity of tort law means that there are problems in using negligence
to pursue claims against public bodies such as the police. However, there is the
possibility of using a claim under the Human Rights Act 1998 against a public body
as an alternative claim where a tort action might not succeed.
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, 1.3 Tort and human rights
Many of the rights established by the European Convention on Human Rights
(ECHR) have been given effect in English law by the Human Rights Act 1998 (HRA
1998). Examples:
The right to life (Article 2, ECHR)
The right to liberty (Article 5, ECHR)
The right to a fair trial (Article 6, ECHR)
The right to respect for private and family life (Article 8, ECHR)
The right to freedom of expression (Article 10, ECHR)
Section 6 of the HRA 1998 provides that it is unlawful for a public authority to act in a
way which is incompatible with a Convention right. Thus, the HRA 1998 may
indirectly influence the development of tort law. Section 7 of the HRA 1998 allows a
victim of such breach to bring proceedings against the public authority. It also gives
the court power to award a remedy for such breach (section 8). That remedy may
include an award of damages, provided that the court is satisfied that a payment of
damages is necessary to afford just satisfaction to the victim (section 8(3)).
Where the defendant is a public body, the HRA 1998 may sometimes provide a
direct alternative to a claim in tort.
Courts must ensure that their judgments are compatible with Convention rights, even
in cases concerning only private individuals. This allows human rights to have an
indirect influence on the development of the law of tort, although it does not
necessarily mean that the courts are obliged to make changes to the principles of
the law of tort.
In some areas, the HRA 1998 has ‘inspired law change’ (e.g. privacy; reputation).
The law of defamation often needs to strike a balance between the rights
enshrined in Article 10 ECHR (i.e. freedom of speech) and those covered by
Article 8 ECHR (i.e. respect for private and family life).
Defamation is limited to protection for reputation.
Reputation is a much narrower interest than privacy in general.
E.g. a claimant may complain about the publication of information which is
private but true. The fact that information published was true would provide a
defence to a claim in defamation.
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, The action for misuse of private information may provide a remedy. It helps to
provide protection for the Article 8 right to respect for private and family life.
However, the influence of human rights on the protection of privacy in tort law
has not resulted in the creation of a single tort protecting all aspects of privacy.
E.g. in Wainwright v Home Office, the claimant, when visiting a prison, was
subjected to a strip search in circumstances which caused her distress and
embarrassment.
She could not use the HRA 1998 to provide a direct alternative to a claim in
tort because the events had occurred before the HRA 1998 came into force.
The claimant tried to rely upon ECHR, Article 8 to persuade the court to
extend the existing law of tort to cover the kind of harm she had suffered.
The House of Lords declined to extend the law of tort to provide a remedy
for the kind of harm suffered by the claimant - mere distress and upset.
The court declined to identify privacy as a single protected interest requiring
the creation of a single and distinct tort of interference with privacy.
Rather, the House of Lords noted that the law of tort protects against a range
of different harms, each covered by a distinct tort. It was satisfied that, taken
together, the range of existing torts provided sufficient protection for the
value of privacy.
In other cases, the courts have not extended existing causes of action to reflect
Convention rights (e.g. negligence; nuisance).
It is largely left to the discretion of the judiciary to determine the impact
of the HRA 1998 in individual cases.
2. How tort works
2.1 Parties
Generally, an individual can sue or be sued by anyone.
Children
Anyone who is under 18 years of age can sue or be sued but will conduct the
litigation through a ‘litigation friend’ (often a parent or guardian).
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, A child’s parents may be involved in the dispute as a litigation friend but parents are
not liable legally or financially for the torts of their children.
Thus, it is often not financially worth bringing a claim against a child defendant.
Companies
A limited company (‘Ltd’) has its own legal personality and can sue or be sued in its
corporate name.
Partnerships (‘firms’) are merely collections of individuals with no legal personality,
but procedural litigation rules allow them also to sue or be sued in their partnership
name.
Death
When a person dies, any claim (with the exception of defamation) that he had in tort
or any claim against him survives and is taken over by his personal representatives.
2.2 Limitation period
Limitation periods are found in the Limitation Act 1980.
For tort claims the limitation period is generally six years from when the cause of
action arises (which is usually when damage occurs).
Special cases:
A claim for defamation must be brought within one year of the publication of the
defamatory statement;
Any claim for personal injuries must be brought within three years of the date of
injury.
When a child (someone under 18 years) is the claimant, the relevant period of
time does not start to run until the child reaches 18 years of age.
3. Introduction to negligence
Negligence may be defined as a breach of a legal duty of care owed to a claimant
that results in harm to the claimant, undesired by the defendant.
4. Duty of care
A defendant will be liable in Negligence only if he is under a legal duty to take care
for the person who is injured.
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, 4.1 Established duty situations
Common established duty situations include:
One road-user to another (e.g. driver to other drivers; driver to passenger; driver
to pedestrian; cyclist to driver; cyclist to pedestrian);
Doctor to patient;
Employer to employee;
Manufacturer to consumer;
Tutor to tutee, or teacher to pupil.
Rescuers: 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 (Baker TE Hopkins & Son Ltd).
4.2 Novel duty situations
4.2.1 The neighbor principle
In Donoghue v Stevenson, Lord Macmillan said ‘the categories of negligence are
never closed’.
Donoghue v Stevenson
- It sets out the test for establishing whether a duty of care exists in any
novel situation.
- The narrow rule: A manufacturer owes a duty of care to the ultimate
consumer of the goods.
- It sets out the ‘neighbour principle’: ‘You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour’.
- Neighbour is defined as ‘persons who are so closely and directly affected
by my act that I ought reasonably to have them in my contemplation as
being so affected when I am directing my mind to the acts or omissions
which are called in question’.
- The test is one of close relationship or proximity, in the sense of having
the other person in mind when you do a certain act.
- The criterion for establishing the duty is whether this particular defendant
ought reasonably to have foreseen the likelihood of injury to this claimant.
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