TORT LAW
NOTES
Tort- civil wrong against a person where the law can provide a solution- eg one persons wrongs
that causes harm to another- covers various forms of injury outside a contractual relationship
Law is expressed un- legislation eg act of parliament or previous cases
Majority of law in tort law is from case law
TORT LAW IS- a law that protects certain interests from interference- allows someone whose
interest has been damaged to seek a remedy from the person who caused injury aka the
tortfeasor - tort acts as a balance between needs and interests of individuals
Aim of tort law-
- primary aim- to correct the damage done to the harmed individual- can be done by
paying financial damages or compensation and restrict the action that causes the harm
- Secondary aim- deterrence (making someone decide not to do something),
investigation, vindication (defending against criticism)
Torts are different than crimes- crimes are criminal offences where the state prosecutes
an individual for actions that break the law- can be guilty or non guilty
Torts are civil wrongs- but there can be an overlap between criminal and tort law- eg punching
someone or battery assault
CONTRACT LAW
Contract law- another element of civil law and law of obligations- when the harm breaches the
terms of the contract
THE VARIETY OF WRONGS-
Negligence- breach of duty of care
, - General duties- eg driving a car there is a general duty to care for those around you
- Special duties- eg employer liability- occupier liability and product liability in a
business / corporation
- Personal torts- eg battery, assault, false imprisonment, invasion of privacy, defamation
- Land torts- trespass of property, nuisance- something that causes annoyances for an
owner to enjoy their property
ROLE OF POLICY- judges will always comment on policy matters in decisions- policy meaning
social, political moral and ethical considerations that go beyond the legal framework- policy
argues beyond the facts of the case and looks at other liabilities
INTERESTS PROTECTED IN TORT LAW
- Physical harm- eg broken leg in traffic collision due to negligence of general duties
- Psychiatric harm- eg by witnessing a traffic collision and having a traumatic response
- Damage to property or enjoyment of your property
- Financial loss- eg if your business is damaged due to negligence
- Intangible harm- interference with your rights eg trespassing your land
NEGLIGENCE
Negligence- failure to exercise reasonable care
WHY IT MATTERS
- Restoring the harm done
- Preventing further harm
- Deterring wrongful behavior
- Raising safety standards
HISTORICAL DEVELOPMENTS- DUTY OF CARE
- Donoghue v Stevenson [1932] : the ‘neighbour principle’. Landmark judgment which
established a duty of care to those closely and directly affected by the defendant’s
carelessness – no longer good law.
- Anns v Merton [1978]: the two-stage test for duty of care (foreseeability + policy
considerations) – no longer good law
- Caparo v Dickman [1990]: the 3 ‘ingredients’ test (foreseeability + proximity +
fairness/justice/reasonableness) – applicable test
^INGREDIENTS TEST
- Forseeability of harm
- Proximity of relationship
- Fair, just and reasonable to impose a duty
REASONABLE PERSON TEST- OBJECTIVE TEST FACTORS
- Risk of harm
- Seriousness of harm
- Practicality of precautions
- Social utility
,^ can measure standard of care / breach of duty- breach meaning failure to act as a reasonable
pearson would considering these factors
FACTUAL CAUSATION
- But for test- would the harm have occurred if the defendants breach meets the test- No
- Barnett v Chelsea and Kensington Hospital [1969]: Key case; patient would have
died regardless of the doctor’s negligence – no causation.
- Balance of probabilities- more than 50% more likely than not
- There can be more than one cause to a damage
LEGAL CAUSATION- REMOTENESS
- The wagan mound (No 1) (1961)- the defendant is only liable for harm that is
reasonably foreseeable
Intervening acts can break the chain of causation
- Intervening act of a third party
- Intervening act of the claimant
;Carelessness alone does not give rise to liability’- ( Horsey and racklry, p.57)
PARTIES IN A NEGLIGENCE CLAIM
- Claimant: brings the claim- previously plaintiff
- Defendant: responds to the claimant’s arguments and raises potential defences
- Tortfeasor: person who committed the tort/negligence (may be different from the
defendant)
- Court: decides on whether the defendant is liable and if so, how much compensation
(damages) the defendant should pay to the claimant
KEY TERMS
- Claimant
- Defendant
- Liable
- Damages
- Appellant
- Respondent
ELEMENTS OF A NEGLIGENCE CLAIM
- Duty of Care
- Breach of Duty
- Factual Causation
- Legal Causation/Remoteness
- Defences
The claimant has the burden of proof- claimant must prove all these elements- duty of
care, breach, factual and legal causation - civil standard of proof- ‘balance of
probabilities’ (50%)
, HOW DO COURTS MAKE DECISIONS
- Floodgates
- Fairness
- Public interest
- Economic impact
- Encouraging safe practices
DEFENCES
- If all elements of negligence are proven- defendant may try to use defences to either
escape liability completely or reduce the amount of damages to be paid to the claimant
- Complete or partial defences
- Contributory negligence- partial defence
- Volenti non fit injuria- complete defence
- Illegality- complete defence
DAMAGES
- Purpose- put the claimant in position they would have been in if the negligence had not
occurred
- Compensatory
- Special damages- measurable financial losses- medical, lost wages
- General damages- non financial losses- (pain suffering loss of amenity)
- Future losses- eg ongoing care and future earnings
ANALYSIS OF THE COURTS REASONING IN NETTLESHIP
- Court held that learner drivers are judged by the same standard of care as
competent, experienced drivers
AIMS ACHIEVED
- PUBLIC INTEREST AND CONSISTENCY
- COMPENSATION AND DETERRENCE
- FAIRNESS
- ROLE OF INSURANCE
OUTCOMES OF A NEGLIGENCE CLAIM
- If claim succeeds- compensation - damages
- If claim fails- no compensation- claimant may have to pay their own legal costs
and sometimes the defendants
- Purposes- restorative justice- deference- distributive justice, vindication,
retribution
ESTABLISHED DUTY SITUTATIONS
- Drivers- road users
- Medical professionals- patients
- Employers - employees
NOTES
Tort- civil wrong against a person where the law can provide a solution- eg one persons wrongs
that causes harm to another- covers various forms of injury outside a contractual relationship
Law is expressed un- legislation eg act of parliament or previous cases
Majority of law in tort law is from case law
TORT LAW IS- a law that protects certain interests from interference- allows someone whose
interest has been damaged to seek a remedy from the person who caused injury aka the
tortfeasor - tort acts as a balance between needs and interests of individuals
Aim of tort law-
- primary aim- to correct the damage done to the harmed individual- can be done by
paying financial damages or compensation and restrict the action that causes the harm
- Secondary aim- deterrence (making someone decide not to do something),
investigation, vindication (defending against criticism)
Torts are different than crimes- crimes are criminal offences where the state prosecutes
an individual for actions that break the law- can be guilty or non guilty
Torts are civil wrongs- but there can be an overlap between criminal and tort law- eg punching
someone or battery assault
CONTRACT LAW
Contract law- another element of civil law and law of obligations- when the harm breaches the
terms of the contract
THE VARIETY OF WRONGS-
Negligence- breach of duty of care
, - General duties- eg driving a car there is a general duty to care for those around you
- Special duties- eg employer liability- occupier liability and product liability in a
business / corporation
- Personal torts- eg battery, assault, false imprisonment, invasion of privacy, defamation
- Land torts- trespass of property, nuisance- something that causes annoyances for an
owner to enjoy their property
ROLE OF POLICY- judges will always comment on policy matters in decisions- policy meaning
social, political moral and ethical considerations that go beyond the legal framework- policy
argues beyond the facts of the case and looks at other liabilities
INTERESTS PROTECTED IN TORT LAW
- Physical harm- eg broken leg in traffic collision due to negligence of general duties
- Psychiatric harm- eg by witnessing a traffic collision and having a traumatic response
- Damage to property or enjoyment of your property
- Financial loss- eg if your business is damaged due to negligence
- Intangible harm- interference with your rights eg trespassing your land
NEGLIGENCE
Negligence- failure to exercise reasonable care
WHY IT MATTERS
- Restoring the harm done
- Preventing further harm
- Deterring wrongful behavior
- Raising safety standards
HISTORICAL DEVELOPMENTS- DUTY OF CARE
- Donoghue v Stevenson [1932] : the ‘neighbour principle’. Landmark judgment which
established a duty of care to those closely and directly affected by the defendant’s
carelessness – no longer good law.
- Anns v Merton [1978]: the two-stage test for duty of care (foreseeability + policy
considerations) – no longer good law
- Caparo v Dickman [1990]: the 3 ‘ingredients’ test (foreseeability + proximity +
fairness/justice/reasonableness) – applicable test
^INGREDIENTS TEST
- Forseeability of harm
- Proximity of relationship
- Fair, just and reasonable to impose a duty
REASONABLE PERSON TEST- OBJECTIVE TEST FACTORS
- Risk of harm
- Seriousness of harm
- Practicality of precautions
- Social utility
,^ can measure standard of care / breach of duty- breach meaning failure to act as a reasonable
pearson would considering these factors
FACTUAL CAUSATION
- But for test- would the harm have occurred if the defendants breach meets the test- No
- Barnett v Chelsea and Kensington Hospital [1969]: Key case; patient would have
died regardless of the doctor’s negligence – no causation.
- Balance of probabilities- more than 50% more likely than not
- There can be more than one cause to a damage
LEGAL CAUSATION- REMOTENESS
- The wagan mound (No 1) (1961)- the defendant is only liable for harm that is
reasonably foreseeable
Intervening acts can break the chain of causation
- Intervening act of a third party
- Intervening act of the claimant
;Carelessness alone does not give rise to liability’- ( Horsey and racklry, p.57)
PARTIES IN A NEGLIGENCE CLAIM
- Claimant: brings the claim- previously plaintiff
- Defendant: responds to the claimant’s arguments and raises potential defences
- Tortfeasor: person who committed the tort/negligence (may be different from the
defendant)
- Court: decides on whether the defendant is liable and if so, how much compensation
(damages) the defendant should pay to the claimant
KEY TERMS
- Claimant
- Defendant
- Liable
- Damages
- Appellant
- Respondent
ELEMENTS OF A NEGLIGENCE CLAIM
- Duty of Care
- Breach of Duty
- Factual Causation
- Legal Causation/Remoteness
- Defences
The claimant has the burden of proof- claimant must prove all these elements- duty of
care, breach, factual and legal causation - civil standard of proof- ‘balance of
probabilities’ (50%)
, HOW DO COURTS MAKE DECISIONS
- Floodgates
- Fairness
- Public interest
- Economic impact
- Encouraging safe practices
DEFENCES
- If all elements of negligence are proven- defendant may try to use defences to either
escape liability completely or reduce the amount of damages to be paid to the claimant
- Complete or partial defences
- Contributory negligence- partial defence
- Volenti non fit injuria- complete defence
- Illegality- complete defence
DAMAGES
- Purpose- put the claimant in position they would have been in if the negligence had not
occurred
- Compensatory
- Special damages- measurable financial losses- medical, lost wages
- General damages- non financial losses- (pain suffering loss of amenity)
- Future losses- eg ongoing care and future earnings
ANALYSIS OF THE COURTS REASONING IN NETTLESHIP
- Court held that learner drivers are judged by the same standard of care as
competent, experienced drivers
AIMS ACHIEVED
- PUBLIC INTEREST AND CONSISTENCY
- COMPENSATION AND DETERRENCE
- FAIRNESS
- ROLE OF INSURANCE
OUTCOMES OF A NEGLIGENCE CLAIM
- If claim succeeds- compensation - damages
- If claim fails- no compensation- claimant may have to pay their own legal costs
and sometimes the defendants
- Purposes- restorative justice- deference- distributive justice, vindication,
retribution
ESTABLISHED DUTY SITUTATIONS
- Drivers- road users
- Medical professionals- patients
- Employers - employees
