This document provides an overview of the law of tort, specifically the tort of negligence. It defines a tort, distinguishes torts from crimes, and outlines the key types of torts. It then focuses on negligence, explaining the four elements that must be proven (duty of care, breach, causation, damages). It discusses cases that have helped develop these elements and concepts like foreseeability, proximity, standard of care, remoteness, and contributory negligence. The purpose is for students to understand tort law principles and be able to apply them to factual scenarios and case law in seminars and exams.
3. Learning Outcomes:
• Understand what is meant by a tort and distinguish between a tort and
crime;
• Be able to outline the different types of torts and the expected standard
of behaviour set out under each one;
• Explain the tort of negligence and the four key elements of the tort of
negligence;
• Distinguish between the different types of damages and specifically pure
economic loss and consequential economic loss;
• Apply legal principles to given facts and demonstrate criticality & analysis
when answering fact based questions; and
• Analyse case law and be able to apply case law in a persuasive manner to
hypothetical case studies.
4. What is the Law of Tort?
• The law of tort is a branch of the private (civil) law
• A tort is a “civil wrong”, which unlike a crime which is a wrong committed
against the state, is a wrong committed against an individual
• Liability in tort comes from either a breach of a duty owed by members of
society towards each other ( for example, all road users owe other road
users a duty of care) or the infringement of a right of another person (for
example, everyone has the right to privacy and therefore, a newspaper may
be liable if it publishes something of a sensitive/private nature.)
• The law of tort therefore, protects the rights & freedoms of individuals, their
property and reputation
• The rights and duties of individuals have been developed by the courts
through case law ( for example, duty of care has been developed following
the case of Donoghue v Stevenson (1932)). However, there are also Acts of
Parliament which also set out rights and duties ( for example, the Occupiers’
Liability Act (1957))
5. Key differences between crimes and torts
Crimes Torts
A wrong against the state A wrong against an individual
Case will usually be started by the state Case will be started by the individual affected
(the claimant)
Defendant will be prosecuted in the criminal
courts
The defendant faces “criminal charges”
Defendant will be sued in the civil courts
A civil action will be brought against the
defendant
If guilty the defendant will be
prosecuted/punished
If liable the defendant will have to pay
damages/compensation to the claimant
Main purpose of the criminal law is to maintain
law & order and to protect the public
The main purpose of the law of torts is to
provide the individual who has a suffered from
an infringement of a right/duty, with a remedy
to enforce their rights
Branch of the public law (criminal law) Branch of the private (civil) law
Law of torts largely developed through
common law/case law
Standard of proof- “beyond reasonable doubt”
Burden of proof- rests with the prosecution
Standard of proof- “balance of probabilities”
Burden of proof-rests on the claimant
6. Types of Torts
• There are different types of torts recognised by the English law
and each tort sets out a certain expected standard of behaviour
• We will be looking at the following torts on the course:
The Tort of Negligence
The Tort of Defamation
The Tort of Trespass (both against the person and property)
The Tort of Nuisance
7. Fault Based Liability
• Tortious liability requires the defendant to be at fault in some way.
However, this does not necessarily have to be intentional
• What does fault mean?
• The definition of fault is wide but generally it means an act (or
omission) committed by the defendant which causes the defendant
damages
• Therefore, the law of torts serves two main purposes…….
1.Compensation: the law of torts ensures that those who are
injured/suffer damages, receive compensation
2.Deterrence: the threat of compensation (like the threat of
punishment in the criminal law) encourages individuals to behave
more responsibly
9. What is negligence?
• Dictionary Definition: “lack of proper care and attention”
• Legal Definition: “ the breach of a legal duty of care, which results in
damage to the claimant undesired by the defendant”
• Both definitions provide that negligence involves the claimant
receiving a sub standard level of care
10. The 4 elements of the tort of negligence:
• The following four elements must be established to prove negligence:
1. The claimant suffered a type of damage recognised by the law of tort
2. The defendant owed the claimant a duty of care
3. The defendant breached the duty of care; and
4. The breach caused the claimant reasonably foreseeable damage
NB: the burden of proof will always be on the claimant!
12. Physical Damage
• There are two types of physical damages:
• Injury to the claimant (mental and physical); and
• Damage to the claimant’s property
• Example: Tom crashes into Jerry’s car, as a result of which Jerry
suffers from whiplash (back pain) and his car is also severely damaged
13. Consequential Economic Loss (CEL)
• When the claimant suffers financial loss as a result of physical
damage, this is known as consequential economic loss
• Example: If Jerry, who from the earlier example suffers a whip lash, is
unable to go to work and therefore, looses income and furthermore,
occurs medical costs. Provided that he can establish that the damage
was caused by Tom’s negligence, he could recover his consequential
economic losses
14. Pure Economic Loss (PEL)
• Pure economic loss occurs where the defendant’s negligence causes nothing
else but financial loss
• Example (1): Jerry purchases a radio from Tom. When Jerry returns home
and tries his new radio, he discovers it is not working. Jerry cannot claim
damages from Tom because the only damage Jerry has suffered is financial
loss: the money wasted on the radio. Although Jerry cannot claim
compensation under the law of torts, he can however, claim under the law of
contract.
• Example (2): Tom negligently cuts the cable that provides electricity to
Jerry’s Pizzeria. Without any electricity, Jerry is unable to make or sell any
pizza. Jerry cannot claim damages from Tom because the only damage Jerry
has suffered is financial loss: the profit that could have been made by selling
pizzas.
• As a general rule, the law of torts DOE NOT recognise PEL
• However, there are certain situations whereby the claimant can receive
compensation for PEL (Hedley Bryne v Heller (1963))
15. Duty of care
• The claimant must prove that the defendant owed him a duty of care
• How is duty of care established?
• DUTY OF CARE: Donoghue v Stevenson (1932)
16. Donoghue v Stevenson (1932)
• Lord Atkins:
“ you must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour. Who,
then, in law is my neighbour? The answer seems to be-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 in question”
• Therefore, a duty of care is owed to our “neighbour”- the person who
is most closely and directly affected by our actions
• This is known as the “neighbourhood principle”
17. Caparo Industries Plc v Dickman (1990)
• This is the current test for establishing duty of care and this test is
much wider than the neighbourhood test
• When a judge is presented with a case involving the tort of
negligence, the following approach will be adopted. Firstly, the judge
will consider the material facts of the case and consider precedents
(remember the doctrine of precedent?) to see if a duty of care has
already been established relevant to the claimant’s situation
• If the judge is unsuccessful, he will only impose a new duty of care if
the following three stage test is satisfied:
18. Caparo Industries Plc v Dickman (1990)
1. Was the damage suffered by the claimant a reasonably foreseeable
consequence of the defendant’s actions?
The damage must be foreseeable, if damage is not foreseeable then
there is no duty of care
Bourhill v Young (1943)
Langley v Dray (1998)
2. Was there a relationship of proximity/neighbourhood between the
claimant and the defendant?
Proximity doesn’t mean being physically close or being related but
instead refers to the defendant having an amount of control over and
responsibility for the dangerous situation created
3. Is it fair, just and reasonable for the law to impose a new duty of care
in the situation?
McFarlane v Tayside Health Board (1999)
19. Breach of Duty of Care
• The claimant must establish that the defendant breached the duty of
care owed to the claimant
• A defendant breaches a duty of care when s/he falls below the
standard of care that was expected from the defendant
• The standard of care therefore, is the level of care which a reasonable
or prudent person would exercise…………this is known as the
“reasonable man test”
• Therefore, in cases where the defendant is an expert, for example, a
doctor or dentist, than the standard of care is the level of care to be
expected from such an expert (the “reasonable doctor” or the
“reasonable dentist”.)
• Nettleship v Weston (1971)
20. Risk not known:
• If the risk is not known to anyone at the time of the injury, the
defendant cannot be held to have breached his duty of care.
• Roe v Minister of Health (1954)
22. Causation
• The fourth and final element of the tort of negligence requires the
claimant to prove that the defendant’s breach caused the claimant’s
damage
• The test for causation is the “but for test”
• In other words, but for the defendant’s negligent act, would the
claimant have suffered damage?
• Barnett v Chelsea & Kensington Hospital Management Committee
(1968)
23. Causation-Remoteness
• There has to be a causal link between the defendant’s negligent act
and the damage/s suffered by the claimant
• This is known as the concept of remoteness
• The Wagon Mound (1961)
• Smith v Leech Brain & Co (1962)
24. Res ipsa loquitur
•The general rule is that the claimant must prove all the three elements
of negligence. That is, duty of care, breach of duty and causation.
However, sometimes the facts are enough to prove the defendant
negligent
•This rule of evidence is called res ipsa loquitur- “The facts speak for
themselves”
•The claimant has to show that the defendant was in control of the
situation, which caused the claimant injury and the injury was more
likely than not to have been caused by negligence
•Scott v London & St Katherine Docks (1865)
25. Contributory Negligence
• Contributory negligence means that the claimant contributed or was
partly to blame, for the damages suffered, as a result of some act or
omission on their part
• Froom v Butcher (1976)
• Law Reform (Contributory Negligence) Act 1945: The claimant can
still make a claim against the defendant but the amount of damages
he receives will be “apportioned” (reduced) by the amount the
claimant was to blame
26. Preps. For Seminar 10
• Hand-out:
• Reading List
• Jacqueline Martin, “GCSE Law”, 5th
Edition, Chapter
17- Law of Tort: Introduction & pages 130-137 of
Chapter 18-Law of Tort: Negligence
• List of cases
• Preparatory Questions
