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Introduction to English Law
Lecture 6: Tort Law
10th December 2008
Dr. Ian Curry-Sumner
UCERF, School of Law, Utrecht University 2
Categorisation of Torts
­ Difference between "Law of Tort" and "Law of Torts"
­ How to categorise torts in England & Wales:
1. Level of intent of the tortfeasor, and
2. Interest affected by the tort.
­ Ratio: compensation and deterrence
­ Punitive or exemplary damages ­ confined to 2 cases:
* Conduct calculated to make a profit: Cassel v. Broome [1972]
* Oppressive conduct by Government servants: Thompson v. MPC
[1998]
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Categorisation of Torts
Intentional Negligence Nuisance Strict Liable
Against the
person
Against
property
Dignitary
Economic
Assault, battery, false imprisonment
Trespass to land, conversion
Defamation, deceit
Fraud
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Negligence
A duty of care A breach of duty
Damage
foreseeable
What does
this mean?
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Duty of Care (1)
General
Question of law for the judge
Ratio
Aims to limit liability, acts as a control device
Historical Development: Pre 1932
Until 19th century no real concept of duty as we know it now
Liability existed within confined relationships
Doctor-patient, ferryman-passenger, blacksmith-customer etc.
Reasons for change: social, industrial and technological revolution
Distinction drawn with contract: contract imposes obligations if agreed
tort imposes obligations by law 6
Duty of Care (2)
Historical Development: Post 1932
Donoghue v. Stephenson (1932)
1. Neighbour test introduced
2. New category of duty was created: "categories of negligence are never
closed"
"You must take reasonable care to avoid acts or omission which you
can reasonably foresee would be likely to injure your neighbour.
Who then is your neighbour? The answer seems to me to be
persons who are closely and directly affected by my act that I ought
reasonably to have them in contemplation as being affected when I
am directing my mind to the acts or omissions which are called in
question"
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Duty of Care (3)
Historical Development: Post 1977
Anns v. London Borough of Merton (1977)
2 stage test:
1. Whether as between the alleged wrongdoer and the person who has
suffered damage relationship of proximity existed, in which case prima
facie duty of care.
2. If 1st question answered affirmatively then need to see if any
considerations to limit
This is thus an expansive understanding of the duty of care.
Problems
Couldn't get insurance to cover and so judiciary had to act.
Sutherland Shire Council v. Heyman (1985)
Yuen Kun-yeu v. AG of Hong Kong (1987)
Caparo Industries v. Dickman (1990) 8
Duty of Care (4)
Historical Development: Post 1990
Murphy v. Brentwood DC (1990)
3 stage test: 1. Damage must have been reasonably foreseeable
2. There must have been proximity between the parties
3. It must be just, fair and reasonable to impose liability
We put the "reasonable" man in the defendanťs position and work out whether
reasonable man would have foreseen the likelihood of the injury.
Therefore need to know whaťs the "reasonable man"
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Duty of Care: Expansion
Pre Donoghue
Donoghue v. Stephenson
Hedley Byrne v. Heller
Anns v. Merton LBC
Murphy v. Brentwood BC
Caparo v. Dickman
Duty of Care
2006
e.g. White v.
Jones
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Back to Negligence ...
A duty of care A breach of duty
Damage
1. Foresight of damage, i.e. according
to reasonable man test
2. Proximity between parties
3. Just, fair and reasonable to impose
liability
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Breach of Duty (1)
General
How much care must the D take.
Objective test chosen. Why? Simplicity and practicality.
Blyth v. Birmingham Waterworks Co. (1856)
Standard required is not that of a particularly conscientious person but
that of the average prudent person in the eyes of the court. It has been
said that the reasonable person can be found on "the Clapham omnibus".
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Breach of Duty (2)
What factors used in determining reasonable man?
Likelihood of harm
Bolton v. Stone (1951)
The Wagon Mound (No 2) (1967)
Hayley v. London Electricity Board (1965)
Magnitude of harm
Paris v. Stepney BC (1951)
Utility of defendanťs conduct
Watt v. Hertfordshire CC (1954)
Difficulty of avoiding harm (cost of precautions)
Latimer v. AEC (1953)
Bolton v. Stone (1951)
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Breach of Duty (3)
What characteristics can be used in determining the reasonable
man?
Children
Mullin v. Richards (1998)
Lunatics
Roberts v. Ramsbottom (1980)
Amateurs
Nettleship v. Weston (1971)
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A duty of care A breach of duty
Damage
1. Damage reasonable foreseeable
2. Proximity between parties
3. Just, fair and reasonable to impose
liability
Reasonable
man
Back to Negligence ...
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Damage (1)
General
2 questions:
1. Factual causation ­ "but for" test
2. Legal causation:
1. Was the harm directly caused by the D? Until 1961
break in the chain of causation
2. Was what happened reasonable foreseable? Since 1961
remoteness and foreseeability
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Damage (2)
Factual causation: "but for" test
Barnett v. Chelsea and Kensington Hospital [1969] 1 QB 428
Most cases no problems. However:
1) Negligent omissions: McWilliams v. Sir William Ltd [1962] 1 WLR 295
2) More than one cause: Performance Cars v. Abraham [1962] 1 QB 33
3) Loss of a chance: Hotson v. East Berkshire AHA [1987] 1 All ER 909
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Damage (3)
Legal Causation: Remoteness
Until 1961: Direct consequence test
Re Polemis and Furness [1921] 3 KB 560
Since 1961: Reasonable foreseeability test
The Wagon Mound (No. 1) [1961] AC 388
Ds negligently discharged fuel oil into Sydney Harbour. Oil spread to Ps
wharf where welding was taking place. The Ps were assured that there was
no danger of the oil catching fire. 2 days later the oil caught fire and the
wharf and ships were damaged.
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Damage (4)
Legal Causation: Remoteness
The Wagon Mound (No. 1) [1961] AC 388: Viscount Simonds
1) Kind of damage needs to be foreseeable:
Hughes v. Lord Advocate [1963] AC 837
Ds employees erected a tent over a manhole and surrounded it with paraffin
lamps. 10 year old dropped a lamp down the hole and due to combustion,
explosion occurred and P badly burned. HoL said they Ds were liable because
it was not the extent of the damage that needed to be foreseeable or the
manner in which it happened, but the kind of damage that occurred.
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Damage (5)
2) Extent of damage is not an issue:
Page v. Smith [1996]
P driving his car when he was involved in an accident caused by the Ds
negligence. Suffered no physical injury and no compensatable nervous shock.
His claim was for the development of ME. Had suffered from Me for number of
years, but was in remission. As result of accident, relapse.
3) Hyper-sensitive plaintiffs
Smith v. Leech [1962] 2 QB 405
Burn on lip as a result of Ds negligence. Burn caused cancer and died 3 years
later. Ds argued that not liable as could not have foreseen the damage. What
was the result do you think?
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A duty of care A breach of duty
Damage
1. Damage reasonable foreseeable
2. Proximity between parties
3. Just, fair and reasonable to impose
liability
Reasonable
man
Back to Negligence ...
Causation
and
remoteness