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Tort
Tort Law
Foundation of Torts 30/09
Tort- A civil wrong which entitles the injured party to a remedy
Compensation through civil courts
Concerned with wrongs that lead to some form of compensation through courts
Injuries experienced from slippery floors, holes in the floor, ceiling falling on you, etc.
tort is not usually concerned with harm inflicted intentionally
Protected Interests
Real Property (houses)
Economic interests (losing money because of someone’s wrong)
Tort & other obligations (Crime & Contract)
Crime is prosecuted by the state, tort is brought by the victim seeking to be compensated
Contract is an obligation taken on by oneself, tort is imposed on you externally.
Tort of Negligence – Duty of Care
Tort 1
, “The breach by the defendant of a legal duty to take care causing some recoverable damage to the
claimant.”
The Duty of Care – “A legal obligation placed on a person to take reasonable care when performing an
activity.”
Prevent injury to those of whom you have duty of care
A doctor owes duty of care to their patients, a driver owes duty of care to other road users
(pedestrians, other drivers, etc.)
Is duty of care owed? → depends on the type of harm + how it was inflicted
Type of harm – eg. Physical injury
History and Development of Duty of Care and Negligence
HISTORY - THE GENERAL DUTY OF CARE AND THE DEVELOPMENT OF
NEGLIGENCE - Donoghue v Stevenson (1932)
Landmark case, formulated the neighbour principle
A buys Mrs D a bottle of ginger beer in a bottle that is opaque. Mrs D. poured half of the ginger beer
into a glass and drank it. She then poured the remainder into the glass and saw the remains of a
decomposing snail. She claimed to have suffered physical illness (gastro-enteritis) as a result.
Donoghue cannot sue her friend because there is no fault on the friend’s part (not intentionally and not
careless) and no contract
Mrs Donoghue had no claim in contract law because the contract for ginger beer had been made
between the retailer and her fried. so donoghue cannot sue Minchella (There’s no fault-Minchella
cannot see into the bottle, and no contract-friend bought the drink)
Tort of negligence falls on Stevenson, Manufacturer – They were legally obliged to be careful to the
ultimate people who would consume their goods.
Tort 2
, https://moodle.nottingham.ac.uk/pluginfile.php/10981681/mod_resource/content/1/Donoghue%20v%20Stevenson%20-%20Extracts.pdf
Judgement - Donoghue v Stevenson (1932)
Legal duty to take care is owed by defendants to their neighbours.
As per Lord Atkin, neighbour – “persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.”
Lord Atkin’s general principle contained two elements:
element of “reasonable foreseeability” → doc is owed where defendant ought reasonably to
foresee that his failure to take care may cause injury to another
test of “neighbourhood” → doc is owed only where the claimant was “closely and directly” affected
by the defendant’s conduct.
💡 it should be noted that lord atkin’s principle did not form part of the ratio decidendi (reason for
deciding) of the case, because the two other majority judges in the case refrained from adopting
it.
2/10
Anns v Merton (1978) As per Lord Wilberforce
→ there should be doc in any situation where
there is a sufficiently close relationship between the claimant and defendant
there were no good reason to not have a doc in place.
The approach of whether there is a closer relationship of proximity, if yes, a duty of care exists unless
there is good reason for it not to exist started to be criticised.
Caparo V Dickman (1990)
→ overinflation of fidelity (company)’s worth - touche ross (the company of accountants) failed to properly
audit fidelity’s account
→ caparo decides to buy fidelity based on the valuation of fidelity in the accounts (which touche ross
claims to be accurate)
→ once caparo purchases fidelity, they find out that the stock is practically junk and worthless, hence they
take a massive loss
→ they were not compensated for this loss, so they sue the dickman brothers (accountants)
→ dickman blames it on touche ross
in order for touche ross to be liable to caparo there has to be a duty of care. that doc is the issue in caparo
v dickman.
in the lower courts the questions being asked are the anns v merton questions:
Tort 3
, is there a relationship of neighbourhood proximity?
are there any good reasons not to impose duty of care?
however high court disagrees with this approach and questions whether it is a good idea to impose a doc
in a particular situation
And basically they say the law should develop incrementally, take small steps forward, and impose duties
of care where we think it's a good idea to take those steps forward.
therefore in this case there is a duty of care and we ask if its a good idea to develop the law in this
particular circumstance.
in determining whether to take that incremental step and developing the law to say there should be a duty
of care here 3 questions need to be asked:
is it reasonably foreseeable that the carelessness of the defendant could harm the claimant?
is there a rs bw the claimant and defendant that makes it appropriate to impose a doc?
is it fair, just, and reasonable to impose a doc in these circumstances?
💡 where you can demonstrate that the damage to the claimant was reasonably foreseeable, that
there was an appropriate proximity of relationship, and it was fair and reasonable to impose a
duty of care, then there would be a duty.
then it would be appropriate to take the step forward and say there would be a duty in this situation.
in this case high courts said it would not be reasonable to impose a doc on touche ross as it is not fair, just,
and reasonable.
The primary reason - this was a statement that the accounts are a true and fair reflection of the finances
of fidelity that they are making to the world. Anybody can have access to the published accounts of fidelity
PLC.
The auditors do owe a duty to the shareholders of fidelity. They have a duty contractually to those
shareholders, but not to caparo plc. So Anns v Merton's approach of neighbourhood proximity is thrown
out
and instead we have this approach that says we only take steps forward in circumstances where it's fair,
just and reasonable to do so.
Post Caparo Cases
The real challenge with this is that it started to cause uncertainty in cases where for a long
time it had been assumed that duties would apply and suddenly they they weren't.
It was said it wasn't fair, just and reasonable to impose a duty of care.
Pure Economic Loss
→ Financial loss that does not stem from damage to the claimant’s property or person
→ precedents show that courts are generally reluctant to impose a duty of care in situations of pure
economic loss.
Generally no liabilities unless
Tort 4
Tort
Tort Law
Foundation of Torts 30/09
Tort- A civil wrong which entitles the injured party to a remedy
Compensation through civil courts
Concerned with wrongs that lead to some form of compensation through courts
Injuries experienced from slippery floors, holes in the floor, ceiling falling on you, etc.
tort is not usually concerned with harm inflicted intentionally
Protected Interests
Real Property (houses)
Economic interests (losing money because of someone’s wrong)
Tort & other obligations (Crime & Contract)
Crime is prosecuted by the state, tort is brought by the victim seeking to be compensated
Contract is an obligation taken on by oneself, tort is imposed on you externally.
Tort of Negligence – Duty of Care
Tort 1
, “The breach by the defendant of a legal duty to take care causing some recoverable damage to the
claimant.”
The Duty of Care – “A legal obligation placed on a person to take reasonable care when performing an
activity.”
Prevent injury to those of whom you have duty of care
A doctor owes duty of care to their patients, a driver owes duty of care to other road users
(pedestrians, other drivers, etc.)
Is duty of care owed? → depends on the type of harm + how it was inflicted
Type of harm – eg. Physical injury
History and Development of Duty of Care and Negligence
HISTORY - THE GENERAL DUTY OF CARE AND THE DEVELOPMENT OF
NEGLIGENCE - Donoghue v Stevenson (1932)
Landmark case, formulated the neighbour principle
A buys Mrs D a bottle of ginger beer in a bottle that is opaque. Mrs D. poured half of the ginger beer
into a glass and drank it. She then poured the remainder into the glass and saw the remains of a
decomposing snail. She claimed to have suffered physical illness (gastro-enteritis) as a result.
Donoghue cannot sue her friend because there is no fault on the friend’s part (not intentionally and not
careless) and no contract
Mrs Donoghue had no claim in contract law because the contract for ginger beer had been made
between the retailer and her fried. so donoghue cannot sue Minchella (There’s no fault-Minchella
cannot see into the bottle, and no contract-friend bought the drink)
Tort of negligence falls on Stevenson, Manufacturer – They were legally obliged to be careful to the
ultimate people who would consume their goods.
Tort 2
, https://moodle.nottingham.ac.uk/pluginfile.php/10981681/mod_resource/content/1/Donoghue%20v%20Stevenson%20-%20Extracts.pdf
Judgement - Donoghue v Stevenson (1932)
Legal duty to take care is owed by defendants to their neighbours.
As per Lord Atkin, neighbour – “persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.”
Lord Atkin’s general principle contained two elements:
element of “reasonable foreseeability” → doc is owed where defendant ought reasonably to
foresee that his failure to take care may cause injury to another
test of “neighbourhood” → doc is owed only where the claimant was “closely and directly” affected
by the defendant’s conduct.
💡 it should be noted that lord atkin’s principle did not form part of the ratio decidendi (reason for
deciding) of the case, because the two other majority judges in the case refrained from adopting
it.
2/10
Anns v Merton (1978) As per Lord Wilberforce
→ there should be doc in any situation where
there is a sufficiently close relationship between the claimant and defendant
there were no good reason to not have a doc in place.
The approach of whether there is a closer relationship of proximity, if yes, a duty of care exists unless
there is good reason for it not to exist started to be criticised.
Caparo V Dickman (1990)
→ overinflation of fidelity (company)’s worth - touche ross (the company of accountants) failed to properly
audit fidelity’s account
→ caparo decides to buy fidelity based on the valuation of fidelity in the accounts (which touche ross
claims to be accurate)
→ once caparo purchases fidelity, they find out that the stock is practically junk and worthless, hence they
take a massive loss
→ they were not compensated for this loss, so they sue the dickman brothers (accountants)
→ dickman blames it on touche ross
in order for touche ross to be liable to caparo there has to be a duty of care. that doc is the issue in caparo
v dickman.
in the lower courts the questions being asked are the anns v merton questions:
Tort 3
, is there a relationship of neighbourhood proximity?
are there any good reasons not to impose duty of care?
however high court disagrees with this approach and questions whether it is a good idea to impose a doc
in a particular situation
And basically they say the law should develop incrementally, take small steps forward, and impose duties
of care where we think it's a good idea to take those steps forward.
therefore in this case there is a duty of care and we ask if its a good idea to develop the law in this
particular circumstance.
in determining whether to take that incremental step and developing the law to say there should be a duty
of care here 3 questions need to be asked:
is it reasonably foreseeable that the carelessness of the defendant could harm the claimant?
is there a rs bw the claimant and defendant that makes it appropriate to impose a doc?
is it fair, just, and reasonable to impose a doc in these circumstances?
💡 where you can demonstrate that the damage to the claimant was reasonably foreseeable, that
there was an appropriate proximity of relationship, and it was fair and reasonable to impose a
duty of care, then there would be a duty.
then it would be appropriate to take the step forward and say there would be a duty in this situation.
in this case high courts said it would not be reasonable to impose a doc on touche ross as it is not fair, just,
and reasonable.
The primary reason - this was a statement that the accounts are a true and fair reflection of the finances
of fidelity that they are making to the world. Anybody can have access to the published accounts of fidelity
PLC.
The auditors do owe a duty to the shareholders of fidelity. They have a duty contractually to those
shareholders, but not to caparo plc. So Anns v Merton's approach of neighbourhood proximity is thrown
out
and instead we have this approach that says we only take steps forward in circumstances where it's fair,
just and reasonable to do so.
Post Caparo Cases
The real challenge with this is that it started to cause uncertainty in cases where for a long
time it had been assumed that duties would apply and suddenly they they weren't.
It was said it wasn't fair, just and reasonable to impose a duty of care.
Pure Economic Loss
→ Financial loss that does not stem from damage to the claimant’s property or person
→ precedents show that courts are generally reluctant to impose a duty of care in situations of pure
economic loss.
Generally no liabilities unless
Tort 4
