Tort law
Contents Page
Introduction 2-3
Introduction to negligence 4-5
Duty of Care 6-9
Causation 10-16
Novus Actus Interveniens 17-20
Duty of care pt 2 21-32
Economic loss 33-40
Psychiatric harm 41-47
Occupiers’ liability 48-55
Employers’ liability/vicarious liability 56-75
Trespass to the person 76-85
Defamation 86-97
Nuisance 98-109
Rylands v Fletcher 110-113
1
, Tort is a French word that means ‘wrong’
It is a civil wrong
‘It is a breach of an obligation prescribed by law’ – generally this is ‘common law’ (judge made
law)
There are some statutes – e.g. Occupiers Liability and Defamation
Some EU law – e.g. product liability
The objectives of tort
It focuses on actual damage; it compensates people who have suffered damage
This can be:
- To a person
- To property
- To a purse
- To your representation
You are given compensation and/or loss distribution (a form of insurance)
Deterrence/behaviour modification to meet the required standard
May, instead, protect essential interests, e.g. personal integrity:
- Trespass to person
- False imprisonment
Here no loss is needed
Categories of tort law or law of various torts?
There are lots of ‘types’ – nuisance, trespass, negligence and defamation
Some say they are so different and distinctive so they are a series of torts
Others say that there are unifying principles – so tort in various categories
Tort v Contract
Tort is known as part of the law of obligations, as is contract law
Tort is mainly about:
- Imposing obligations arising out of general law (expect you to behave in a particular way)
- Compensating loss
- Setting standards of behaviour (benchmarking)
Contract Is mainly about:
- Confirming the agreed relationship between the parties
- Enforcing that agreement
- Compensating one party when the other fails to perform
The difference between suing in Tort and Contract is:
Damages (compensation) in each are calculated differently
Contract claims are usually easier to make
- Tort you have to convince the court that obligations have not been met
Time limits for suing (limitation periods) are different
If there is a contract – sue in contact
If there is no contract , you must fall back on tort (no contract but there is some sort of
relationship)
Perhaps, you can sue in both contexts:
- Henderson v Merrett Syndicates (1995) HL
Tort and crime
2
, Some torts are also sometimes crimes – e.g. battery
Developed simultaneously (run in parallel) – e.g. theft (crime) vs conversion (tort); criminal
damage (crime) vs trespass to goods (tort)
Different functions between crime and tort, crime is about punishment, but tort Is about
compensation
Parties in tort litigation
Claimant (formerly Plaintiff) – the victim, but may be represented by another (e.g. after a
fatal accident, or a child case)
Defendant – allegedly responsible. In older cases they were often referred to as the
tortfeasor – maker or doer of the tort
If there are two or more defendants, there can be joint or several liability
If there is joint liability the claimant should sue everyone responsibility , if there is several
liability the claimant can sue who they want to
Joint liability - S1(1) Civil Liability (Contribution) Act 1978
3
, Introduction to negligence
Generally the terms “negligence” and “negligent” are just descriptive words
However, the word “negligence” has specific legal meaning
“Negligence” is a shorthand descriptive of the tort of breach of duty of care
Contractual duties of care can also exist.
Elements of negligence
Has to be a duty of care (tortfeasor had to have owed a duty of care to the victim)
Has to be breach of that duty
Damage must arise out of the breach of duty
Causation – The breach of duty has caused the damage sustained by the victim
Remoteness – if the damage sustained is too remote from the instance of the tort, then that
damage is not recoverable by the victim
Claimant must prove all of these
- These elements allow the courts scope and flexibility to allow or deny claims.
- Floodgates argument – compensation cannot / should not be payable in respect of every
- instance of loss.
Proof of negligence
Existence of a duty of care is a question of law
- For the court as a matter of law to determine whether a duty of law existed between the
defendant and the claimant
Setting a standard of care (deciding what behaviour meets the requirement standard of duty
of care or what falls below the standard of duty of care) is also a question of law
But when it comes to the question of whether the defendant did fall below that standard is a
question of fact
Because of this circumstances and context are always significant in the law of negligence
Burden of proof is on the claimant to convince the court of the existence of negligence but it
is up to the defendant to explain to the court why the claimant is wrong
Done on the balance of probabilities
S11 Civil Evidence Act 1968 – criminal conviction (if the defendant has been convicted of an
offence which arises out the same facts of which the claimant is trying to prove negligence,
then s11 reverses the burden of proof – defendant has the burden of proof)
Res Ipsa Loquitor (“the matter speaks for itself”) – so obvious the claimant doesn’t have to
prove existence negligence
- Normally applies when the source of accident under Defendant’s control
- Harm/damage sustained by the claimant was only by lack of care
- Doesn’t apply if there is an explanation from the evidence
Inference of negligence unless the defendant rebuts the inference
Contributory negligence
Idea that what if the claimant (victim) partly to blame, e.g.:
4
Contents Page
Introduction 2-3
Introduction to negligence 4-5
Duty of Care 6-9
Causation 10-16
Novus Actus Interveniens 17-20
Duty of care pt 2 21-32
Economic loss 33-40
Psychiatric harm 41-47
Occupiers’ liability 48-55
Employers’ liability/vicarious liability 56-75
Trespass to the person 76-85
Defamation 86-97
Nuisance 98-109
Rylands v Fletcher 110-113
1
, Tort is a French word that means ‘wrong’
It is a civil wrong
‘It is a breach of an obligation prescribed by law’ – generally this is ‘common law’ (judge made
law)
There are some statutes – e.g. Occupiers Liability and Defamation
Some EU law – e.g. product liability
The objectives of tort
It focuses on actual damage; it compensates people who have suffered damage
This can be:
- To a person
- To property
- To a purse
- To your representation
You are given compensation and/or loss distribution (a form of insurance)
Deterrence/behaviour modification to meet the required standard
May, instead, protect essential interests, e.g. personal integrity:
- Trespass to person
- False imprisonment
Here no loss is needed
Categories of tort law or law of various torts?
There are lots of ‘types’ – nuisance, trespass, negligence and defamation
Some say they are so different and distinctive so they are a series of torts
Others say that there are unifying principles – so tort in various categories
Tort v Contract
Tort is known as part of the law of obligations, as is contract law
Tort is mainly about:
- Imposing obligations arising out of general law (expect you to behave in a particular way)
- Compensating loss
- Setting standards of behaviour (benchmarking)
Contract Is mainly about:
- Confirming the agreed relationship between the parties
- Enforcing that agreement
- Compensating one party when the other fails to perform
The difference between suing in Tort and Contract is:
Damages (compensation) in each are calculated differently
Contract claims are usually easier to make
- Tort you have to convince the court that obligations have not been met
Time limits for suing (limitation periods) are different
If there is a contract – sue in contact
If there is no contract , you must fall back on tort (no contract but there is some sort of
relationship)
Perhaps, you can sue in both contexts:
- Henderson v Merrett Syndicates (1995) HL
Tort and crime
2
, Some torts are also sometimes crimes – e.g. battery
Developed simultaneously (run in parallel) – e.g. theft (crime) vs conversion (tort); criminal
damage (crime) vs trespass to goods (tort)
Different functions between crime and tort, crime is about punishment, but tort Is about
compensation
Parties in tort litigation
Claimant (formerly Plaintiff) – the victim, but may be represented by another (e.g. after a
fatal accident, or a child case)
Defendant – allegedly responsible. In older cases they were often referred to as the
tortfeasor – maker or doer of the tort
If there are two or more defendants, there can be joint or several liability
If there is joint liability the claimant should sue everyone responsibility , if there is several
liability the claimant can sue who they want to
Joint liability - S1(1) Civil Liability (Contribution) Act 1978
3
, Introduction to negligence
Generally the terms “negligence” and “negligent” are just descriptive words
However, the word “negligence” has specific legal meaning
“Negligence” is a shorthand descriptive of the tort of breach of duty of care
Contractual duties of care can also exist.
Elements of negligence
Has to be a duty of care (tortfeasor had to have owed a duty of care to the victim)
Has to be breach of that duty
Damage must arise out of the breach of duty
Causation – The breach of duty has caused the damage sustained by the victim
Remoteness – if the damage sustained is too remote from the instance of the tort, then that
damage is not recoverable by the victim
Claimant must prove all of these
- These elements allow the courts scope and flexibility to allow or deny claims.
- Floodgates argument – compensation cannot / should not be payable in respect of every
- instance of loss.
Proof of negligence
Existence of a duty of care is a question of law
- For the court as a matter of law to determine whether a duty of law existed between the
defendant and the claimant
Setting a standard of care (deciding what behaviour meets the requirement standard of duty
of care or what falls below the standard of duty of care) is also a question of law
But when it comes to the question of whether the defendant did fall below that standard is a
question of fact
Because of this circumstances and context are always significant in the law of negligence
Burden of proof is on the claimant to convince the court of the existence of negligence but it
is up to the defendant to explain to the court why the claimant is wrong
Done on the balance of probabilities
S11 Civil Evidence Act 1968 – criminal conviction (if the defendant has been convicted of an
offence which arises out the same facts of which the claimant is trying to prove negligence,
then s11 reverses the burden of proof – defendant has the burden of proof)
Res Ipsa Loquitor (“the matter speaks for itself”) – so obvious the claimant doesn’t have to
prove existence negligence
- Normally applies when the source of accident under Defendant’s control
- Harm/damage sustained by the claimant was only by lack of care
- Doesn’t apply if there is an explanation from the evidence
Inference of negligence unless the defendant rebuts the inference
Contributory negligence
Idea that what if the claimant (victim) partly to blame, e.g.:
4
