Exam (elaborations)

First Class Tort Law Notes (LLB)

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Module
Law of Tort

Institution
The University Of Birmingham (UBir)

First Class Master Class Notes for Tort Law. Foundational concepts, cases and scholars. Perfect for revision for exams and tutorials!

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Uploaded on January 9, 2021
Number of pages 133
Written in 2020/2021
Type Exam (elaborations)
Contains Questions & answers

AGS
Tort Law
Master Revision
Wednesday 22nd May

Contents:

Section 1: Introduction, Aims & Functions
The Aims, Objectives and Criticisms of Tort Law. We will consider what it means to
commit a ‘wrong’ for the purposes of tort liability and we will discuss various lenses
through which we can see tort operating (i.e. to achieve corrective justice between the
parties or to achieve more pragmatic ends, such as compensation and deterrence).

Section 2: Nuisance
In nuisance, we are concerned primarily with balancing the interests of landowners and
their ability (as owners) to use and enjoy their land. Nuisance is, therefore, concerned
with reasonableness, in particular the reasonable user. In all cases, courts will ask
whether the ordinary person could reasonably be expected to put up with the defendant’s
interference.

Section 3: Negligence I – Duty, Omissions, 3rd Party.
Actionable Damage. The Duty of Care. Omissions and Acts of Third Parties.

Section 4: Negligence II – Public Authorities, Psychiatric Harm, Pure Economic
Loss.
Different Types of Damage. Public Authority Liability.

Section 5: Negligence III – Breach & Factual Causation
Breach of Duty of Care. Whether the defendant fell below the standard expected of the
reasonable person. At the factual causation stage, we need to establish whether, based on
the balance of probabilities, the defendant caused the claimant’s damage/injury.

Section 6: Negligence IV – Legal Causation, NAI & Defences
The nature of Legal Causation (remoteness). If the defendant’s action and claimant’s
damage are too far removed from one another or an intervening act has broken the chain
of causation, the defendant will not be liable. Novus Actus Interveniens. Defences.

Section 7: Wrongs to the Person – Intentional Torts
Trespass, Assault & Battery. False Imprisonment. Defences. Intentional Infliction of Harm.

1

, Section 1: Introduction, Aims & Functions
• Tort law is the branch of civil law predominantly concerned with protecting a
range of individual interests.

• The main interests protected concern the safety of person and property, the
use and enjoyment of property, reputation and, to a limited extent, certain
economic interests and privacy.

• Tort law is diverse and must be distinguished from other areas of law.

• Public policy and, more recently, human rights law must be taken into
account in learning the law of tort.

• Remedies in tort are predominantly damages and, to a lesser extent,
injunctions.

• Insurance plays a role in practice, if not in principle.

• The tort system is only one of many routes to compensation.

• Concerns about the growing ‘compensation culture’ have been reflected in
the Compensation Act 2006, judicial decisions and academic comment.

Foundational Knowledge
Corrective Justice

● Liability consists in a legal relationship between two parties
○ In holding the defendant liable to the claimant, the court is not making two separate
judgements
○ One that awards something to the claimant and the other that coincidentally takes the
same away from the defendant
○ But a single judgement that embraces both parties in their inter-relationship
● What relationships are formed by the virtue of the wrong àconnected by the wrong in a way
that they weren’t before
● The aim of the justice is to correct the imbalance that occurred between them
● Correlative obligation → must have a duty to make sure the harm did not occur

Corrective Justice Elements

● (1) Principle of Correlativity
○ Both parties must be legal persons
○ Claimant and defendant as sufferer and doer of the same injustice
● (2) Claimant (Sufferer)
○ A recognized protected right (or interest)
○ Their right was violated
● (3) Defendant

2

, ○ A duty owed to the claimant themselves and breached
○ The correlative obligation
○ Generally therefore, fault and reasonable foreseeability
● Palsgraf v Long Island Railway
○ No correlative obligation
○ There was no relationship between the conductor and the lady that got injured from
the fireworks in the box
○ No obligation of the train conductor to be mindful of her

Distributive Justice

● MacFarlane v Tayside Health Board
○ Husband had a vasectomy but the wife a year later got pregnant
○ The wrong was in the timing of the doctor (negligence) in telling them that they didn’t
need to use contraception anymore
○ Claim against the labour and pain in giving birth to Catherine, and the economic
damages in order to raise Catherine
● If we used corrective justice, then the claimant would have won the case
○ Correlative obligation between the doctor and the patient
○ Wrong that has brought the parties together and the inter-relationship of the wrong
● Somebody who has harmed another justification to indemnify the other
● It is not right to say that a child is less than another, even if it’s unplanned
● Corrective justice is one to one
● Distributive justice is one too many
○ Many different interests
○ Wider issues of social policy and community welfare
● The proper role of community welfare considerations in deciding cases and shaping private
law rules lies at the heart of questions about the nature of (tort) law
○ It’s premised on a scarcity of resources or funds or some proportionately-based
criteria to assess merit or need
● Aims to ensure that as between the parties that neither equal persons have unequal
things nor unequal persons things equal

Section 2: Nuisance

In nuisance, we are concerned primarily with balancing the interests of landowners and their
ability (as owners) to use and enjoy their land. Nuisance is, therefore, concerned with
reasonableness, in particular the reasonable user. In all cases, courts will ask whether the ordinary
person could reasonably be expected to put up with the defendant’s interference.

• The term ‘nuisance’ relates to three very different actions: private nuisance,
public nuisance and statutory nuisance. The same event may be actionable
under more than one of these.

• All three are land-related torts, occurring indirectly.

• Unlike negligence, in nuisance the law is concerned less with the nature of
the defendant’s conduct than with its effect.

3

, • Rylands v Fletcher is a variety of nuisance which carries strict liability.

Foundational Knowledge

LI- October 18th
Private vs Public Nuisance
● Nuisance is an action (or a failure to act) on the part of a defendant, which is not
otherwise authorized and which causes an interference with the claimant’s reasonable
enjoyment of the land
● Purpose of nuisance → Protects ownership rights in land
● Proprietary Rights: When you purchase land or take out a lease, you get rights that vest
with the ownership
● Function
○ Must balance the rights of the claimant and defendant
○ Both sides have rights they are entitled to
● Public nuisance is a crime and only actionable in certain circumstances
● Private nuisance is concerned with private individuals
■ o Indirect, unlawful, continuous interference

Buckley J in Saunders-Clark v Grosvenor Mansions [1900]

“...the court must consider whether the defendant is using his property reasonably or not. If
he
is using it reasonably, there is nothing which at law can be considered a nuisance; but if he is
not using it reasonably...then the plaintiff is entitled to relief”

Types of Nuisance

● Established in Hunter v Canary Wharf [1997]
● (1) Encroachment
● (2) Direct physical injury
○ Direct interference or impact on the land
● (3) Quiet enjoyment
○ Amenity loss or damage

Law of Property Act 1925

● S. 205 (1)
● Not just things on the surface, but parts of buildings or buildings are considered land
● Corporeal hereditaments: Tangible things that you can pass onto someone else
● Incorporeal hereditaments: Aren’t tangible like rights, privileges, benefits, derived from land

Principle- General Rule

Lord Goff - Hunter v Canary Wharf [1997]

“ As a general rule, a man is entitled to build on his own land though nowadays this right is
inevitably subject to our system of planning controls. Moreover, as a general rule, a man’s right
to build on his own land is not restricted by the fact that the presence of the building may
of itself interfere with his neighbour’s enjoyment of his land.”
Who can Sue?

Hunter v Canary Wharf [1997]

4

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