Duty of Care and Breach
March 20, 2023
Quick Note on Additional Reading: Tort Law (7th edn) Chapter 1.
• Explains: the interests that tort purportedly protects; the meaning and
use of ‘policy’ in judgements; whether tort embodies corrective justice;
whether tort brings about a compensation culture; whether tort acts as a
deterrent; whether tort vindicates rights; and how the HRA has impacted
tort.
1 Tort
• A tort involves the infringement of a legal right (or breach of a legal duty)
and it gives rise to a claim in the civil courts.
• A person who commits a tort is called ‘a tortfeasor’ and their liability is
described as tortious.
• As tort is a civil matter, the person bringing about the claim is the
claimant, and the person against whom the claim is brought is the de-
fendant.
• People use the law of tort because they seek some remedy for the wrong
they have suffered.
• As tort is a civil matter, it is important to individuate it from criminal
matters. However, there are some matters that admit both criminal and
tortious elements - assault and battery and contract are two examples.
• Although Tort and criminal matters overlap, they also take place different
courts, serve different functions, and involve different bodies.
• Again, although Tort and contract overlap, they are different for the fol-
lowing reasons.
• In contract, the parties’ obligations are fixed by the terms of the contract.
In some cases terms may be implied into the contract by the law, but most
terms are usually expressly agreed by the parties. In tort, on the other
hand, liability does not depend on any consensus between the parties; it
1
, is determined by rules which dictate whether the defendant’s wrongdoing
constitutes a tort.
• In contract, there has to be a contractual relationship between a claimant
and a defendant before a claim for breach of contract can arise. This
means that only the parties to the contract can sue. In tort, however,
the potential scope of liability is much wider. As obligations in tort are
imposed by law, they are owed to the world at large and are not dependent
on an agreement between the parties.
• And obligations in contract law are generally said to be voluntarily un-
dertaken in the sense that the parties agree to enter into the contract.
Obligations in tort, on the other hand, are imposed on a defendant by
law.
• As tort seeks to compensate, insurance is very important; for if the defen-
dant cannot afford to pay damages, then the claim is a hollow one.
2 Functions of Tort
• Compensation.
• Deterrence. Potential liability in tort may have a deterrent effect (even
where someone is insured) if a finding of negligence against the defendant
could either adversely affect their reputation or result in them having to
pay higher insurance premiums.
• Justice. Wrongdoers will rarely pay the damages out of their own pockets;
their insurance companies will foot the bill. Therefore, the claim that tort
satisfies the aim of justice is somewhat suspect.
• Vindication of rights. Claimants may wish to make a point of principle,
initiate an investigation, or provoke authorities into acting.
3 The Range and Scope of Tort
• A claimant must always suffer tangible harm. Some torts are said to be
actionable per se; claims in these torts do not require the claimant to have
suffered any actual injury or damage. For these torts, the infringement of
a legal right that is protected by the law of tort is all the harm that the
claimant needs to show.
• Aside from a claimant not having remedy in tort if they have suffered
a kind of harm that is not protected by tort law, a claimant may find
themselves denied protection because the courts have declined to find that
the defendant owed the claimant a duty to take care. These restrictions
have been imposed for policy reasons. See Osman v Ferguson [1993] 4
2
March 20, 2023
Quick Note on Additional Reading: Tort Law (7th edn) Chapter 1.
• Explains: the interests that tort purportedly protects; the meaning and
use of ‘policy’ in judgements; whether tort embodies corrective justice;
whether tort brings about a compensation culture; whether tort acts as a
deterrent; whether tort vindicates rights; and how the HRA has impacted
tort.
1 Tort
• A tort involves the infringement of a legal right (or breach of a legal duty)
and it gives rise to a claim in the civil courts.
• A person who commits a tort is called ‘a tortfeasor’ and their liability is
described as tortious.
• As tort is a civil matter, the person bringing about the claim is the
claimant, and the person against whom the claim is brought is the de-
fendant.
• People use the law of tort because they seek some remedy for the wrong
they have suffered.
• As tort is a civil matter, it is important to individuate it from criminal
matters. However, there are some matters that admit both criminal and
tortious elements - assault and battery and contract are two examples.
• Although Tort and criminal matters overlap, they also take place different
courts, serve different functions, and involve different bodies.
• Again, although Tort and contract overlap, they are different for the fol-
lowing reasons.
• In contract, the parties’ obligations are fixed by the terms of the contract.
In some cases terms may be implied into the contract by the law, but most
terms are usually expressly agreed by the parties. In tort, on the other
hand, liability does not depend on any consensus between the parties; it
1
, is determined by rules which dictate whether the defendant’s wrongdoing
constitutes a tort.
• In contract, there has to be a contractual relationship between a claimant
and a defendant before a claim for breach of contract can arise. This
means that only the parties to the contract can sue. In tort, however,
the potential scope of liability is much wider. As obligations in tort are
imposed by law, they are owed to the world at large and are not dependent
on an agreement between the parties.
• And obligations in contract law are generally said to be voluntarily un-
dertaken in the sense that the parties agree to enter into the contract.
Obligations in tort, on the other hand, are imposed on a defendant by
law.
• As tort seeks to compensate, insurance is very important; for if the defen-
dant cannot afford to pay damages, then the claim is a hollow one.
2 Functions of Tort
• Compensation.
• Deterrence. Potential liability in tort may have a deterrent effect (even
where someone is insured) if a finding of negligence against the defendant
could either adversely affect their reputation or result in them having to
pay higher insurance premiums.
• Justice. Wrongdoers will rarely pay the damages out of their own pockets;
their insurance companies will foot the bill. Therefore, the claim that tort
satisfies the aim of justice is somewhat suspect.
• Vindication of rights. Claimants may wish to make a point of principle,
initiate an investigation, or provoke authorities into acting.
3 The Range and Scope of Tort
• A claimant must always suffer tangible harm. Some torts are said to be
actionable per se; claims in these torts do not require the claimant to have
suffered any actual injury or damage. For these torts, the infringement of
a legal right that is protected by the law of tort is all the harm that the
claimant needs to show.
• Aside from a claimant not having remedy in tort if they have suffered
a kind of harm that is not protected by tort law, a claimant may find
themselves denied protection because the courts have declined to find that
the defendant owed the claimant a duty to take care. These restrictions
have been imposed for policy reasons. See Osman v Ferguson [1993] 4
2
