What is Tort?

1. What is Tort? • A Civil wrong, as opposed to a Criminal wrong • Tortious Liability is based on the “fault” of the defendant, so the liability arises out of a wrongful act or wrongful omission (when there is a duty to act) • The claimant must prove that the defendant committed or omitted an act either intentionally or negligently

2. The Aims of Tort Law (1) • Compensation (Corrective Justice) – Livingstone v Rawyards Coal Co (1880) Lord Blackburn: compensation should be “…that sum of money which will put the party who has been injured in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation…”

3. The Aims of Tort Law (2) • Retributive Justice – The idea is that the imposition of tortious liability will satisfy the claimant’s need for revenge • Deterrence – The idea is to deter others from doing the same thing. • But what about Vicarious Liability and Workmen’s Compensation Insurance?

4. Duty of Care • Negligence – Failure to take proper care Requirements to prove negligence: • A duty of care was owed • There was a failure to perform this duty • The claimant suffered damage (must not be too remote) Omissions • The law will not generally impose liability for omissions

5. Donoghue v Stenvenson (1932) A bottle of ginger beer was bought for Mrs. Donoghue by her friend at a café. After drinking some, she noticed the decomposing remains of a snail in the bottle. She suffered shock and contracted gastroenteritis. • She could not sue for breach of contract against the café owner because her friend paid (privity of contract) • She sued the manufacturer for negligence • The fact that the ginger beer was sold in an opaque bottle meant that no one else had an opportunity to see inside the bottle before it was sold

6. The Caparo Test Caparo Industries plc v Dickman [1990] • Reasonable foreseeability – The law will impose a duty of care if a “reasonable man” could foresee that committing or omitting an act can result in harm to another • Proximity – The relationship between the defendant and claimant must be close • Fair, Just and Reasonable

7. Breach of Duty A breach is determined by two questions: • How should the Defendant have behaved in the circumstances of the case • Did the Defendant fall below the appropriate standard required

8. Negligent Mistatements Hedley Byrne & Co Ltd v. Heller & Partners Ltd (1964) Lord Reid stated that any reasonable man, knowing his skill and judgement were being relied upon, would have a number of options open to him: • 1. he could keep silent and not give any advice or make any statement • 2. he could give an answer, but qualify it as being made without responsibility • 3. he could give an answer without any such qualification

9. A duty of care would not exist if… It involves a public body Police: Hill v Chief Constable of West Yorkshire [1988] • After her daughter was murdered, a mother sued the police force, claiming that they should have solved the case earlier because he had already had committed 13 murders and 8 attempted murders over a five year period and they had enough evidence to arrest him

10. No duty of care Fire Brigade: Capital & Counties v Hampshire County Council and Others [1997] – There is no duty for the fire service to respond to a call and even if they do, there is no duty of care to the owner(s) Ambulance Service: Kent v Griffiths [2000] – After calling 999, the Ambulance took 40 minutes to arrive

11. Rescue situations Wagner v International Railway (1926) NY The person responsible for the initial situation, will also be responsible for injuries to the rescuer

12. Causation Once there has been a breach of an established duty of care, there is still no liability unless there is a casual link. The question the Courts will ask is: “Was the D’s conduct the cause of, and in any way relevant to C’s loss?”

13. Remoteness Even after showing causation, the act must not have been too remote Foreseeability: The Heron II [1969] – “the tortfeasor is liable for any damage which he can reasonably foresee may happen as a result of the breach, however unlikely it may be, unless it can be brushed aside as far fetched”

14. Likelihood of Accident Bolton v Stone (1951) A man was injured by a cricket ball which was hit over a 17 foot fence and travelled 80 yards from the wicket Hilder v Associated Portland Cement (1961) Children usually played on vacant land owned by the defendant, which was close the road and bordered by a 3 foot fence. A motorcyclist was killed when the ball went into the road

15. Legal Duty v. Moral Obligation to Act • Legal duty can result in a civil claim • Failure to fulfil a moral obligation can only make the negligent party feel bad

16. “But for” test Barnett v Chelsea and Kensington [1969] Mrs. Barnett’s husband went to the hospital suffering arsenic poisoning. The casualty officer turned him away without any examination, telling him to visit his doctor in the morning. The man died a few hours later

17. “Thin Skull” Rule Must take your victim as you find him! Smith v Leech Brain [1962] The victim’s lip got burned on the job, which became ulcerated and developed cancer and died three years later. The victim was already on his way to getting the cancer because of a condition.

18. Volenti non fit injuria • “To a willing person, injury is not done” • The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the Claimant, in full knowledge of the circumstances, to absolve the Defendant of all legal consequences of their actions

19. Nettleship v Weston [1971] 3 WLR 370 • Weston was a learner driver. She was taking lessons from a friend. The friend checked that the defendant's insurance covered her for passengers before agreeing to go out with her. On one of the lessons Mrs Weston turned a bend, Mr Nettleship told her to straighten the wheel but Mrs Weston panicked and failed to straighten the wheel. She approached the pavement and Mr Nettleship grabbed the handbrake and tried to straighten the wheel but it was too late. She mounted the pavement and hit a lamp post. Mr Nettleship fractured his knee..

20. Nettleship v Weston [1971] • The defendant argued that the standard of care should be lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner, he had voluntarily accepted the risk • Held: A learner driver is expected to meet the same standard as a reasonable qualified competent driver. Volenti did not apply as he had checked the insurance cover which demonstrated he did not waive any rights to compensation. His damages were reduced by 50%

21. Res ipsa loquitur • “The thing speaks for itself.” • Used as evidence to show that the instrumentality or condition causing the injury was in the defendant's exclusive control and that the accident was one that ordinarily does not occur in the absence of Negligence