Tort Law

• The tort of negligence requires proof of duty, breach, causation, and damage.
• Battery is unlawful harmful or offensive contact with the plaintiff's person.
• Duty refers to an obligation owed by one party to another.
• Duty is the legal obligation to act with reasonable care towards others who are foreseeably affected by one's actions or omissions.
• Causation means that the defendant's actions caused harm to the plaintiff.
• Caparo test

  1. foreseeable harm to the claimant
  2. proximity or neigbourhood between the claimant & the defendant
  3. fair, just and reasonable to impose a duty of care in this situation
• The Human Rights Act 1998 is a pervasive and increasing source of tort law
• Part A of the Tort examination is based on an academic article worth 25% of the overall mark for the module
• Some cases are the source of important principles and may focus more on social or economic considerations
• Students will answer four short questions about the article
• In Tomlinson v Congleton Borough Council, concerns about the emergence of a compensation culture and fears that the deterrent effect of tort liability might lead to the withdrawal of social amenities of value to the wider community were addressed by the House of Lords
• Tony Weir: 'In order to discover what a decision is an authority for, one must first understand the relevant facts, and analyse the decision in the light of those facts, ignoring asides (obiter dicta). The aim is to ascertain the rule (the ratio decidendi) that the judge must have had in mind in order to reach his decision. Then one must decide whether that rule is applicable to the case in hand, which depends on whether its facts are different enough to enable the prior decision to be ‘distinguished’; if so, the judge may disregard the prior decision or, if he thinks it right, extend it to the case in hand'
• European Union law has had a profound impact on certain areas of tort law
• The trial judge dismissed Tomlinson’s claim but the Court of Appeal found the council liable
• The 1987 Act removes the need for those injured by a defective product to establish fault on the part of the producer
• Statutes replace or partly replace areas of the common law (e.g. Occupiers’ Liability Acts 1957 and 1984); some provide additional protection over a wide field; and some effect minor amendments only
• The House of Lords allowed the council’s appeal against the finding of liability
• The Court’s concerns about the deterrent effect of liability in tort and the need for individuals to retain personal responsibility for their own safety and anticipate risk
• The council had not discharged its duty by issuing warning notices, oral warnings, and safety leaflets
• Precautionary measures taken by the council were ineffective and did not discharge the council’s duty under the Act
• The risk of striking the lake bottom from diving into shallow water was perfectly obvious and not a risk against which the defendant might reasonably have been expected to offer protection
• A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice
• The Consumer Protection Act 1987 imposes strict liability for defective products which cause personal injury and damage to private property
• Product liability is not an examinable topic. Students are not expected to learn the Consumer Protection Act 1987
• Human rights principles have been influential in areas such as defamation, trespass to the person, and negligence
• The most notable feature of the Act is that it removes the need for those injured by a defective product to establish fault on the part of the producer
• It is likely that there will be no immediate impact on tort law following the UK’s withdrawal from the European Union
• Article 10 of the ECHR guarantees the right to freedom of expression
• Existing torts may be modified or new rights of action in damages may be created to provide compensation for an interference with Convention rights
• The courts have to take account of the ECHR in developing the law, even in tort actions between private citizens or private bodies such as companies
• Article 2 of the ECHR requires the state to provide protection against being killed
• Section 6 of the HRA 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right
• Article 3 of the ECHR requires the state to provide protection against inhuman and degrading treatment
• Human rights principles enshrined under the ECHR and contained in the HRA 1998 have been an important influence on tort in recent years
• Neither product liability nor employers’ liability are specifically covered in this module
• Rights relevant to tort law under the ECHR

  • Article 2: Right to life
  • Article 3: Right to freedom from inhuman and degrading treatment
  • Article 5: Right to liberty and security
  • Article 6: Right to a fair trial
  • Article 8: Right to respect for private and family life
  • Article 10: Right to freedom of expression
  • Article 13: Right to effective domestic remedy
• The ECHR has introduced new ways of thinking into domestic law
• Occupiers’ liability: in Edwards v London Borough of Sutton [2016] EWCA Civ 1005, the bridge was held to be dangerous. The defendant occupier was liable in negligence
• Glass houses: breach of privacy can never constitute private nuisance
• An argument advanced to explain why only 0.5 per cent of 7.8 million accidents in the home in 1999 resulted in a successful tort claim was not provided