LAW OF TORTS

Meaning of Tort

It must first be noted that this topic does not cover entirely the whole area of the Law of
Torts, which usually includes, inter alia, the tort of negligence, the tort of nuisance,
trespass and the tort of defamation. Here, the study concentrates on the area of
negligence.

Tortious liability arises from the breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages.

i) A tort is a wrongful act against an individual or body corporate and his, her or its
property, which gives rise to a civil action.
ii) Liability is based on fault and the motive of the defendant in committing the tort is
generally irrelevant.
iii) If a person acts carelessly and as a result of that carelessness, another is injured or
suffered losses, that person maybe is negligent in the law of tort.
iv) But not all-careless acts will allow the wronged person to sue the wrongdoer for
negligence.
v) There are specific elements of the tort of negligence, which have to be established in
the correct order if a claim by an injured party is to succeed. The burden of proof is
on the claimant to show, on a balance of probabilities, that certain elements exist.

Negligence

Negligence is a legal or non-legal concept usually used to achieve compensation for

accidents and injuries. Negligence is a type of tort and is a civil wrong. It may also
sometimes be used in criminal law. Negligence means conduct that is culpable because it
misses the legal standard required of a reasonable person in protecting individuals against
foreseeably risky, harmful acts of other members of society. Negligent behavior towards
others, give them rights to be compensated for the harm to their body, property, mental
well-being, financial status, or relationships

The main ingredients of negligence are:

i) A legal duty on the part of A towards B to exercise care in such conduct of A
which falls within the scope of the duty.
ii) Breach of that duty.
iii) Consequential damage to B (the damage caused must not be too remote).

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Elements of Negligence

1) DUTY OF CARE

 Duty may arise from contract, tort or may be owed by the professional to a client or to
a third party.
 Donoghue v Stevenson (1932) – “Neighbour principle” You must take reasonable
care to avoid acts or omissions that you can reasonably foresee would be likely to
injure your neighbour.
 Who is my neighbour- persons who are so closely and directly affected by my act that
I ought reasonably to have them in mind when I’m directing my acts or omission in
question.
 Here the test is the foresight of a reasonable man. Whether the injury to the Plaintiff
was a reasonably foreseeable consequence of the defendant’s acts or omission.
 In deciding as to whether plaintiff owed a duty of care or not it is necessary to
consider the facts and circumstances of that case.
 A person is not automatically liable for every negligent act he or she commits.
 In order to sue, the claimant must establish that the defendant owes him a duty of
care. Unless the first element is satisfied no liability can arise.

The need to establish a duty of care sets a legal limit on who can bring an action, as a
duty is not owed to the world at large. The onus is on the claimant to establish that the
defendants owe him or her, a duty of care. The test for establishing whether a duty of care
exist or not can be seen in the case of Donoghue v Stevenson (1932)

Donoghue v Stevenson

A lady went into a café with her friend, who bought her a bottle of ginger beer. After she
drank half of the contents from the bottle, she poured the remainder of the ginger beer
into a glass. She then saw the remains of a decomposed snail at the bottom. She suffered
nervous shock and sued the manufacturer, as the snail must have gotten into the bottle at
the manufacturer’s premises, since the bottle cap was securely sealed when her friend
bought it.
It was held that a manufacturer owes a duty of care to the ultimate customer of his or her
goods. He or she must therefore exercise a reasonable care to prevent injury to the
customer. The fact that there is no contractual relationship between the manufacturer and
the customer is irrelevant to this action.
 Here in order to determine whether there is a duty of care between the plaintiff and
the defendant, one has to satisfy a sufficient proximity of relationship or what is
known as the neighbourhood principle.
 Whether damages are foreseeable and whether it is just and reasonable to impose a
duty of care, considering commercial practicability, fairness and public policy.

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The neighbourhood principle, as established by Lord Atkin, is therefore the foresight of a
reasonable man. The question to be asked is whether the injury to the plaintiff was the
reasonably foreseeable consequence of the defendant’s acts or omissions.

In England the more recent case of Caparo Industries v. Dickman introduced a 'threefold'
test for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a
relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just
and reasonable' to impose liability.

2) BREACH OF DUTY
Once it is established that the defendant owed a duty to the plaintiff, the second question
is whether the duty was breached. The test is both subjective and objective. If the
defendant actually realized that the plaintiff was being put at risk, taking the decision to
continue that exposure to the risk of injury breaches the duty. If the defendant did not
actually foresee that another might be put at risk, but a reasonable person in the same
situation would have foreseen the possibility that another might be injured, there will be a
breach.
Once the claimant has established that the defendant owes a duty of care, he / she must
prove that the defendant is in breach of this duty.

The test for deciding whether there has been a breach of duty is laid down in Blyth v
Birmingham Waterworks Co: ‘Negligence is the omission to do something which a
reasonable man, guided upon those considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something which a prudent and reasonable man
would not do’.

A reasonable man has been described as ‘the man on the Clapham Omnibus’. This means
that he is an ordinary man who is not expected to have any particular skill such as that of
a professional unless he is one (a professional).

The test is objective, judged through the eyes of a reasonable man.

The degree or standard will vary, as there are factors, such as the age of the claimant,
which can increase the standard of care to be exercised by the defendant. The test
therefore is flexible. The following factors are relevant:

i) The likelihood of injury

The degree of care must be balanced against the degree of risk involved if the defendant
fails in his duty. Therefore the greater the risk of injury or the more likely it is to occur;
the more the defendant will have to do to fulfill his duty.

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Bolton v Stone
A 17 feet high wall surrounded a cricket ground and the pitch was situated some way
from the road. A batsman hit a ball exceptionally hard, driving it over the wall, where it
struck the plaintiff, who was standing on the highway. It was held that the plaintiff could
not succeed in his action against the Club, as the likelihood of such injury occurring was
small, as was the risk involved. The slight risk was outweighed by the height of the wall
and the fact that a ball had been hit out of the ground only six times in 30 years.

ii) The seriousness of the risk

The degree of care to be exercised by the defendant may be increased if the claimant is
very young, old or less able bodied in some way. The rule is that ‘you must take your
victim as you find him’.
Haley v London Electricity Board
The defendant had made a hole in the pavement in order to carry out repairs. Haley who
was blind often walked along this stretch of pavement. He is usually able to avoid
obstacles by using his stick. The precaution taken by the defendant would have prevented
a sighted person from injuring himself, but not a blind person. Haley fell into the hole,
striking his head on the pavement, and became deaf as a consequence. It was held that the
defendant was in breach of its duty of care to pedestrians. It was clearly not reasonably
safe for blind persons, yet it was foreseeable that they may use this pavement.

iii) Cost and practicability

The foreseeable risk has to be balanced against the measures necessary to eliminate it. If
the cost of the measure outweighs the risk, the defendant will probably not be in breach
of this duty.
Latimer v AEC Ltd
A factory belonging to AEC became flooded after an abnormally heavy rainstorm. The
rain mixed with oily deposits on the floor, making the floor very slippery. Sawdust was
spread on the floor, but it was insufficient to cover the whole area.
Latimer, an employee, slipped on the part of the floor which sawdust had not been
applied. It was held that the defendant was not in breach of his duty to the plaintiff. It had
taken all reasonable precautions to eliminate the risk without closing down the factory.
There was no evidence to suggest that the reasonable prudent employer would close
down the factory. The cost of doing that far outweighed the risk to the employees.

iv) Social utility

The degree of risk has to be balanced against social utility and importance of the
defendant’s activity. If the activity is of particular importance to the community, then the
taking of greater risks may be justified in the circumstances.
Watt v Hertfordshire CC
The plaintiff, a fireman was called out to rescue the trapped women beneath a lorry. The
lifting jack had to be carried on an ordinary lorry, as a suitable vehicle was unavailable.
The jack slipped, injuring the plaintiff. It was held that the employer was not in breach of
duty. The importance of the activity and the fact hat it was an emergency was found to
justify the risk involved.

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 v) Common practice
If the defendant can show that what he or she has done is common practice, then this is
evidence that a proper standard of care has been exercised. However if the common
practice is in itself negligent, then his or her actions in conforming to such a practice will
be actionable.

vi) Skilled persons

The standard of care to be exercised by people professing to have a particular skill is not
be judged on the basis of the reasonable man. The actions of a skilled person must be
judged by what the ordinary skilled man in that job or profession would have done, for
example the reasonable doctor, plumber, lawyer, etc.

vii) Causation
The ‘but for’ test. In order to satisfy the test, the claimant must show that, ‘but for’ the
defendant’s actions, the damages would not have occurred. If the damages would have
occurred irrespective of a breach of duty on the part of the defendant, then the breach is
not the cause.

3) REMOTENESS OF DAMAGE

The third ingredient of the tort of negligence is that the plaintiff’s damage must have been
caused by the defendant’s breach of duty. It must not be too remote a consequence of the
breach. The breach of duty must have been the primary cause of the damage.

Cases:

i) Wagon Mound No. 2.: The Wagon Mound was a ship in Sydney harbour. The Wagon
Mound was a ship which leaked oil creating a slick in part of the harbour. The wharf
owner asked the ship owner about the danger and was told he could continue his work
because the slick would not burn. The wharf owner allowed work to continue on the
wharf, which sent sparks onto a rag in the water which ignited and created a fire which
burnt down the wharf. The UK House of Lords determined that the wharf owner
'intervened' in the causal chain, creating a responsibility for the fire which canceled out
the liability of the ship owner

Novus actus interveniens

Where there is a break in the chain of causation, the defendant will not be liable for
damages after the break. The issues are whether the whole sequence of events is the
probable consequences of the defendant’s actions and whether it is reasonably
foreseeable that these events may happen. This break in the chain of causation is caused
by an intervening act and the law recognises that such acts fall into 3 categories.

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i) A natural act/event
A natural event does not automatically break the chain of causation. If the defendant’s
breach has placed the claimant in a position where the natural event can add to that
damage, the chain will not be broken unless the natural event was totally unforeseen.

ii) Act of a third party

Where the act of a third party following the breach of the defendant causes further
damage to the claimant, such act may be deemed to be a novus actus; the defendant will
not be liable for the damage occurring after the third party’s act.

iii) Act of the claimant

Where it is the act of the claimant, which breaks the chain, it is not a question of
foresight but reasonable conduct, then the claimant cannot claim for the damage.

For a defendant to be held liable, it must be shown that the particular acts or omissions
were the cause of the loss or damage sustained. Although the notion sounds simple, the
causation between one's breach of duty and the harm that results to another can at times
be very complicated. The basic test is to ask whether the injury would have occurred but
for, or without, my breach of duty. Even more precisely, if a breaching party materially
increases the risk of harm to another, then the breaching party can be sued to the value of
harm that he caused

4) DAMAGE

Even though there is breach of duty, the negligence suit will not be successful unless
there is provable injury. The plaintiff must have suffered loss or damage flowing naturally
from the breach of the duty of care if damages are to be awarded. The damage may be
physical (e.g. personal injury), economic (e.g. pure financial loss), or both (e.g. financial
loss of earnings consequent on a personal injury), reputational (e.g. in a defamation case),
or in relationships where a family may have lost a wage earner through a negligent act. In
English law, at least, the right to claim for purely economic loss is limited to a number of
'special' and clearly defined circumstances, often related to the nature of the duty to the
plaintiff as between clients and lawyers, financial advisers, and other professions where
money is central to the consultative services.

Emotional distress has been recognized as compensable in the case of negligence

Damages in tort are generally awarded to place the claimant in the position he would
have been had the tort not taken place. Damages for breach of contract are generally
awarded to place the claimant in the position he would have been had the contract not
been breached. This can often result in a different measure of damages. In cases where it
is possible to frame a claim in either contract or tort, it is necessary to be aware of what
gives the best outcome.

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Damages place a monetary value on the harm done, following the principle of restitutio
in integrum (the Latin for "restoration to the original condition"). Thus, for most purposes
connected with the quantification of damages, the degree of culpability in the breach of
the duty of care is irrelevant. Once the breach of the duty is established, the only
requirement is to compensate the victim. Punitive or exemplary damages may be awarded
in addition to compensatory damages to reflect the egregious nature of the defendant's
conduct, e.g. that the defendant was malicious or callously indifferent.

Damages are, in general, compensatory and not punitive in nature. This means that the
amount paid matches the plaintiff’s actual loss (in cases involving physical injury, the
amount awarded should aim to compensate for the pain and suffering). It is not the court's
intention to punish the defendant. The award should be sufficient so as to put the
plaintiff/claimant back in the position he or she was before the tort was committed and no
more, because otherwise the plaintiff/claimant would actually profit from the tort.

DEFENCES

i) Contributory Negligence
 Where the claimant is found in some way to have contributed through his or her own
fault to his or her injury. The amount of damages awarded will be reduced
accordingly.
 The onus is on the defendant to show that the claimant was at fault.
 If the court if satisfied that the claimant is at fault, will reduce amount of damages by
an amount that which is just and reasonable, depending on the claimant’s share of
blame. Damages can be reduced by anything from 10% to 100%.

Cases:

Sayers v Harlow UDC

Mrs. Sayers found herself locked in a public lavatory. Unable to summon help, she tried
to climb out over the top of the door. She found this is impossible and when climbing
back down, allowed her weight to rest on the toilet roll. Mrs. Sayers fell and injured. It
was held that 75% of her injury was the fault of the council for providing a defective
lock, which was jammed, and 25% was her own fault.

ii) Volenti non fit injuria

 Volenti, or consent is a defence to future conduct of the defendant which involves the
risk of a tort being committed.
 It may arise from an express agreement or it may be implied from the claimant’s
conduct.
Dann v Hamilton

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A girl accepted a lift in the car of a driver whom she knew to be drunk. She could use
alternative transport. She was injured as a result of the negligent of the driver.
It was held that although she knew of the risk, this was insufficient to show that the
consented.

 The consent must be some positive act.

Smith v Charles Baker and Sons
Workmen working under falling stone injured an overhead crane. Although the method of
working is dangerous he had not objected.
Here the mere silence of the workmen cannot be considered as consent.

 The consent given must be voluntary or freely given.

 Consent will not be a defense for strict statutory duty.

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