All Tort Notes Year One PDF

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Tort Law Notes for lectures 1 and 2: History and Development; Theories, Aims and General Characteristics N. LEADING CASES ARE MARKED WITH AN ASTERISK: * Lecture 1: History and Development ● What is tort? “Tort” is a French word, meaning “wrong” [Latin tortus: “twisted”]. Can an injured party (C: the...

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Tort Law Notes for lectures 1 and 2: History and Development; Theories, Aims and General Characteristics N.B. LEADING CASES ARE MARKED WITH AN ASTERISK: * Lecture 1: History and Development ● What is tort? “Tort” is a French word, meaning “wrong” [Latin tortus: “twisted”]. Can an injured party (C: the “claimant”, referred to in older cases as the “plaintiff”) sue the party responsible (D: the “defendant” or “tortfeasor”) for the injury to recover compensation for the injury, damage or loss? ● A collection of “wrongs”; individual “wrongs” to be resolved between parties involved: a private action, creating civil liability; as opposed to a public action, creating criminal liability. ● A general model for a tort action (to which there are exceptions): an act or omission by D which causes damage to C; damage must be caused by the fault of D and must be the kind of harm which attracts legal liability. ● “Fault”: a state of mind or an artificial standard of conduct, objectively set on policy grounds? Motive is generally irrelevant. ● Some torts do not require fault: these are known as torts of strict liability, where D is liable even though harm to C was caused without D’s intention or negligence. See Rylands v Fletcher [1868] L.R. 3 H.L. 330. * ● Tort and criminal law: a tort is a civil wrong, committed against an individual (including legal entities such as companies), rather than against the state. Criminal law is concerned with prosecutions brought by the state against individuals, for breaches of duties imposed for protection of society. Standard of proof differs in criminal and civil actions: “beyond reasonable doubt” and “on a balance of probabilities”. ● Duty: “Tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages [claimant is not claiming a fixed amount of compensation]”, P.H. Winfield, Winfield on Tort. ● Allocation of responsibility for losses. Recoverable damage can take many forms, e.g. injury to the person, damage to property, damage to financial interests, injury to reputation. ● Tort and contract. In tort duties fixed by law: many duties in tort arise by virtue of law alone and are not fixed by the parties, e.g. imposition of duty not to libel others or not to trespass on others’ land. In contract, law is based on agreements, terms of which are fixed by parties themselves: voluntary assumption of obligations. ● In tort, duty is towards persons generally; in contract it is towards a specific person or persons. ● Origins of Tort: In 14th century, the word negligenter appeared in writs of trespass to denote neglectful conduct. Cok v Durant [1377], Calendar of Plea and Memoranda Rolls 1364-81, 235: no reference to undertaking, but a custom of London required everyone to keep his fire safely so that it did not injure his neighbour. Note use of word “neighbour”: it has particular resonance in tort of negligence. Beaulieu v Finglam [1401], Baker & Milsom, Sources of English Legal History, 557: first reference to “custom of the realm”. Note use of word “custom”: ideas of custom, tradition and precedent are all central to ideology and practice of common law. Negligence: the most significant tort of 20th and 21st centuries; “negligent” conduct also describes behaviour which attracts liability in other torts.

1. Case Law. Tort is essentially an area of common law, developed by judges (though statute is relevant) in the courts, often in response to social and economic conditions and social values. See for example, Lord Steyn in Chester v Afshar [2004] UKHL 41 *: “The result is in accord with one of the most basic aspirations of the law, namely to right wrongs. Moreover, the decision...reflects the reasonable expectations of the public in contemporary society”; see also, MacDonald J., in Nova-Mink v Trans-Canada Airlines [1951] 2 DLR 241: “There is always a large element of judicial policy and social expediency involved in the determination of the duty problem, however it may be obscured by the traditional formulae”. 2 quotations from Lord Mansfield (Chief Justice of the King’s Bench, 1756-88), which illustrate the importance of judges in “making” law: “The reason and spirit of cases make law; not the letter of particular precedent”: Fisher v Prince [1762] 3 Burr 1364; “Matters of practice are not to be known from books. What passes at a judge’s chambers is matter of tradition: it rests in memory”: R v Wilkes [1770] 4 Burr 2566. Policy. Are decisions made on basis of formal conceptualism (often referred to as “black letter law”) or is there a policy reason behind the decision? How far does fear of the open “floodgates” influence judicial decision-making? “Whenever the courts draw a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant”: Spartan Steel v Martin & Co [1973] QB 27 *, per Lord Denning, M.R. See also, Lord Denning’s judgments in: New Windsor Corporation v Mellor [1975] 1 Ch 380; Corpus Christi College v Gloucester County Council [1983] 1 QB 360. Important statutory development is Human Rights Act 1998. This statute incorporates European Convention on Human Rights into UK law. Rights are enforceable against public bodies. Articles of the Convention which affect tort law include: Article 2 (right to life); Article 5 (right to liberty); Article 6 (right to a fair trial: see for example, Osman v UK [1999] FLR 193) *; Article 8 (right to privacy); Article 10 (right to freedom of speech). Lecture 2: Theories, Aims and General Characteristics 1. Compensation. Tort provides means of compensating victims of injury and loss. Is it efficient? Other means of compensation include: private insurance; social security system; industrial injuries’ scheme; Criminal Injuries Compensation System; charitable gifts. A “no fault” scheme? See, for example, New Zealand: Accident Compensation Commission. Victim does not have to prove fault. Other advantages include periodical payments instead of lump sum payments, which do not generally take into account inflation. Disadvantages include cost, and removal of deterrent function of tort; but financial cost of tort system is high. On the expense and inefficiency of tort as a compensation scheme, see: Pearson Commission (Royal Commission on Civil Liability and Compensation for Personal Injury, Cmnd 7054 [1978]); and, more recently: Lord Woolf, ‘Access to Justice – Final Report’ (Lord Chancellor’s Dept, 1996). Lord Woolf’s Report led to extensive reforms: Civil Procedure Rules, 1999. Pearson Royal Commission set up in 1973 after widespread expressions of concern about accident compensation, following Thalidomide deformities of early 1960s. Pearson Commission estimated that in personal injury cases, cost of operation was 85% of value of compensation paid through tort system, compared to 11% for social security system. 2. Loss distribution, or ability to bear the loss. Loss here means cost of compensating for harm suffered. “Recent legislative and judicial developments show that the criterion of liability in tort is not so much culpability, but on whom should the risk fall”: White v White [1950], per Denning L.J., 59.

“The risk should be borne by the whole community...rather than rest on one pair of shoulders”: SCM Ltd v Whittall [1971] 1 QB 336, per Lord Denning M.R., 344 *; see also, Lord Denning’s judgment in Nettleship v Weston [1971] 2 QB 350 *. But see Lord Bridge, in Hunt v Severs [1994] 2 AC 350, for argument that in assessing damages it was irrelevant that D was insured. C must find a defendant “with deep pockets”. 3. Protection of interests, for example: a) bodily integrity – trespass to the person, negligence; b) reputation and privacy – defamation; c) land and other property – nuisance, negligence; d) economic interests – economic torts and negligently caused economic loss. 4. Deterrence: a) individual deterrence – possibility of civil sanction (e.g. damages), will cause D to alter conduct and avoid inflicting damage. This might apply where professional reputations (e.g. as doctors or lawyers) are at stake, but is this valid if insurer pays damages?; b) general or market deterrence – tort aims to reduce costs of accidents, so these are imposed on participants in accidentcausing activities. 5. Corrective justice. This is concerned with responsibility for the consequences of actions: those who cause damage to others should pay. This differs from loss distribution by allocating ultimate responsibility to those who cause the resulting costs. 6. Retribution, vindication, punishment. There is an obvious overlap here with the purpose of sentencing in the criminal procedure. But these issues figure in tort as well. Retribution: in tort cases involving defamation and intentional torts, C may derive satisfaction from knowledge that D has been caused inconvenience and expense; retribution might figure also after D found not guilty in criminal trial – burden of proof lower in civil cases. Vindication: C can be publicly exonerated of any wrongdoing in court. Punishment: is there a moral value in requiring wrongdoer to pay victim? All of these putative objectives are less important with the growth in private insurance and fact that many cases are settled out of court. 7. General characteristics of tortious liability. Liability may be imposed as a legal consequence of D’s act or (in certain cases) omission. In most cases, liability is based on fault. Most torts require damage to C, which is not too remote a consequence of D’s action. A state of mind - “the state of a man’s mind is as much a fact as the state of his digestion”: Edgington v Fitzmaurice [1885] 29 Ch. D. 459, per Bowen L.J., 483. What a person thinks must be deduced from his actions. Intention. This can be problematic in tort. Some torts require intention or recklessness, e.g. trespass to the person. Negligence is an independent tort, but it is also a state of mind in some other torts, signifying inadvertence by D to consequences of his action. See for example, Vaughan v Menlove [1837] 3 Bing N.C. 468: D was warned that his haystack might catch fire, which might spread to neighbouring land. D said he would “chance it” and was held liable when stack caught fire. “Reasonable” and “Reasonable Man”. These are recurrent terms in tort law. Reasonableness is the essential ingredient in the law of negligence. Behaviour of an ordinary person (man or woman!) in any particular situation – an abstraction: ...“man on the Clapham Omnibus”, Hall v Brooklands Auto-Racing Club [1933] 1 KB 205 *, per Greer, L.J.; ...“The anthropomorphic conception of justice”, Davis Contractors Ltd v Fareham UDC [1956] AC 686, per Lord Radcliffe, 728; ...“Travellers on the London Underground”, McFarlane v Tayside Health Board [1999] 4 All ER 961 *, per Lord Steyn; he does not have “the prophetic vision of a clairvoyant”, Hawkins v Coulsdon & Purley U.D.C. [1954] 1 Q.B. 319, per Romer L.J., 341. Judges decide what “reasonable” means and inevitably different judges arrive at different conclusions.

“Fair and “just” are words frequently used in tort, implying some correlation between law and ethics. “Fair, just and reasonable” is a crucial phrase in determining the existence of a duty of care; it links with theories of corrective justice (harm should be redressed) and distributive justice (fair distribution of losses and burdens). Tort Law Lectures 3 and 4: introduction to the law of negligence – formulation of a general duty of care; duty of care since Donoghue v Stevenson. N.B. LEADING CASES ARE MARKED WITH AN ASTERISK: * Lecture 3: introduction to the law of negligence – formulation of a general duty of care. 1. Negligence is a specific form of liability under common law, whose present form originated in the 19th c. There are 4 elements to the tort of negligence: a) the existence of a duty of care; b) breach of that duty; c) injury, damage or loss caused by that breach [causation]; d) the type of injury, damage or loss suffered was foreseeable [remoteness of damage]. These 4 elements overlap – courts often regard them as interchangeable. Duty, breach and causation “continually run into one another”, Lamb v Camden LBC [1981] QB 625, per Lord Denning M.R. They can be used as devices to restrict or extend liability. Type of damage or injury affects likelihood of liability: duty of care established more easily in physical injury cases than in cases involving psychiatric injury (nervous shock) or economic loss. Existence of duty and remoteness of damage are issues of law; breach of duty and causation are issues of fact. A recognisable trend? Extension of liability for certain areas of negligence in late 20th c., followed by restriction in liability: opposition to “compensation culture”. 2. Early 19th c. Uncertainty over when a duty of care would be imposed. Tortious duty was mainly imposed only where there was a contract between C and D. Sometimes a stranger could sue for injury caused by negligence pursuant to a contract, e.g. negligent coachman hitting pedestrian. But no duty owed by manufacturer or supplier to ultimate consumer of goods. Generally, early 19th c. law exemplified by Winterbottom v Wright [1842] 10 M & W 109: C contracted with Postmaster-General to drive coach. Coach supplied by D, unsafe. C injured when coach collapsed. No liability because no privity of contract between C and D. 3. First elucidation of general duty of care was in Heaven v Pender [1883] 11 QB 503 *: C, a shippainter, injured when rope supplied by D snapped. D contracted with C’s employer. Brett M.R. gave a concise definition of negligence: “Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property”. Crucially, he continued: “there may be the obligation of such a duty from one person to another although there is no contract between them with regard to such duty”. So when did such a duty occur? Brett M.R. says that where anyone of ordinary care and skill would recognise that if they didn’t use such care and skill they would cause danger of injury to person or property, then there is a duty to use such care and skill to avoid danger. It is unclear whether he is referring to foreseeability, proximity, or both. Brett (as Lord Esher) states importance of physical proximity of C and D. Le Lievre v Gould [1893] 1 QB 491: “If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property”. 4. Donoghue v Stevenson [1932] AC 562 *: the landmark case in modern law of negligence. No contract between C and D, but liability found where D had manufactured defective product, which

caused injury to the ultimate consumer, C. Established general principle that manufacturer of product owes duty of care to final consumer: negligence confirmed as a separate tort. To limit scope of future claims, Lord Atkin formulated the “neighbour principle”. Only when the principle is applied, he said, could duty of care be established. Neighbour principle emphasises importance of the “foreseeable claimant”: reasonable care must be taken to avoid acts or omissions that you can foresee are likely to injure your neighbour...“you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply” [re omissions, Lord Atkin’s statement is contentious, as generally omissions are not actionable]. Provides remedy to consumers where products are likely to cause injury to health. It doesn’t offer remedy for goods of un-merchantable quality: that is province of contract. Limitation of neighbour principle used to extend scope of negligence beyond manufacturer/consumer relationship into wide range of situations. Example of Donoghue v Stevenson being followed, to find liability for defective products: Grant v Australian Knitting Mills Ltd [1936] AC 85. 5. Who is a foreseeable claimant? Good illustration of who isn’t, in US case: Palsgraf v Long Island Railroad Co [1928] 59 ALR 1253 *. D not liable as C was not a foreseeable victim of their negligence. Bourhill v Young [1943] AC 92 *: “area of shock” theory of proximity. D owed no duty to C. “The duty is not to the world at large”, per Lord Porter. C in no danger from D of direct physical injury: not foreseeable to D. Home Office v Dorset Yacht Co [1970] AC 1004 *. D liable to C for damage caused by escaped borstal boys to C’s yacht; but would have been excessive to burden D with liability for all damage subsequently committed. Liability only for harm caused at time of escape and in vicinity. D not liable if, weeks later, escapees robbed Post Office in another part of the country. Overlap here between existence of duty, causation and remoteness of damage. Lecture 4: Duty of Care since Donoghue v Stevenson. 1. “[T]he categories of negligence are never closed”: Donoghue v Stevenson, per Lord Macmillan, 619. He meant that courts have power to create new duty situations which expand area of liability. Subsequently though, the “neighbour principle” has been treated as obiter dictum [Latin: “said by the way”]; ratio decidendi [Latin: “reason for the decision”]. Initially limited to particular case of duty owed by manufacturer to ultimate consumer. But in Home Office v Dorset Yacht Co, re neighbour principle: “the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion”, per Lord Reid, 1027. Onus shifting to D to justify restriction of liability? 2. Anns v Merton [1978] AC 728 *. Local authority liable for negligence of inspectors, who failed to exercise with due care statutory power to check foundations of house during construction. Duty owed to occupiers of houses which had subsequently become uninhabitable. 2-stage test for existence of duty of care, propounded by Lord Wilberforce: a) between alleged wrongdoer and person who suffered damage, is there sufficient relationship of “proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie [Latin: “on first appearance”] duty of care arises”; b) if answer to a) is affirmative, are there “any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed?”, 751-2. This test provided potential for extensive liability: a) “Proximity” criterion is potentially unlimited in scope if it means the reasonable contemplation of likely

harm – what consequences are not foreseeable?; b) “considerations” means “policy grounds” – couches judicial discretion in very broad terms. Does public policy require that there should be no liability? Lord Wilberforce’s test doubted in Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175: Lord Keith referred to proximity as synonym for foreseeability on the one hand, and on the other as the whole concept of the relationship between C and D, as described by Lord Atkin in Donoghue v Stevenson ). Lord Atkin stressed not only requirement of foreseeability of harm, but also a close and direct relationship of proximity. 3. There are many established categories of duty, e.g. doctor and patient: see Darnley v Croydon Health Services NHS Trust [2018] UKSC 50. Guidelines for the existence of duty of care in novel situations are based on Caparo Industries plc v Dickman [1990] 2 AC 605 *. Lord Bridge formulated a 3-stage “test” to determine the existence of a duty of care: a) damage to C is foreseeable; b) there is a relationship of proximity or neighbourhood between C and D; c) the court considers it fair, just and reasonable that the law should impose a duty. So Caparo v Dickman appears to dismiss the Wilberforce 2-stage test in Anns v Merton. But see Michael v Chief Constable of South Wales [2015] UKSC 2 *: Lord Toulson reaffirmed the principles that negligence develops incrementally and by analogy, and that policy considerations would often be relevant. The majority of judges cast...