1.1 Tort Law Basics

Question 1

What is the law of obligations?

Answer 1

• The law of obligations is a branch of private law (governing interactions between individuals)
• The law of obligations is a body of rules that sets out rights and obligations individuals owe each other and what should happen if those rights/obligations are violated

Question 2

What is tort law? (not a definition)

Answer 2

• Civil wrongs, committed by one person against another, for which the law provides a remedy
• Tort law implicitly tells us which actions are wrong and what should happen if a wrong action is committed

Question 3

What is the main external aim of tort law, backward-looking? (What does tort law do)

Answer 3

• Backward-looking function
• Compensation; restore the claimant back to the position they were in if the wrongful conduct had not occurred
• Trying to create a counterfactual reality with monetary compensation

Question 4

What is another external aim of tort law, backward-looking? (What does tort law do)

Answer 4

• Correct a moral harm
• Torts can vindicate the victim by punishing the wrongdoer and establishing the facts of the case

Question 5

Tort is a collection of wrongs, quote from “Winfield and Jolowicz on Tort” by Rogers

Answer 5

“Dustbin of the law of obligations… no one theory explains the whole of the law”

Question 6

What is an aim of tort law, forward-looking? (What does tort law do)

Answer 6

• Deterrence
• Tort regulates behaviour as it provides a deterrent effect
• A response is developed to the risk of punishment; businesses/people/insurers regulate their behaviour to avoid liability

Question 7

What is an internal aim of tort law? (what is tort made of)

Answer 7

• Protecting interests in a hierarchy
• Peter Cane: tort is a system of ethical rules and principles for conduct
• Grand theories that describe the whole of law does not work for torts, as torts are a dustbin of obligations

Question 8

Hierarchy of protected interests

Answer 8

1. Interests of person/body/mental
2. Property
3. Contractual expectancies
4. Monetary wealth

The more strongly an interest is protected, the easier to prove (less is needed to ground an action)

Question 9

How can human rights shape tort law through direct application of human rights law?

Answer 9

• Tort cases may not succeed because of how laws on the duty of care are structured, so the courts use human rights to correct this gap and find “just satisfaction” (ECHR term) for claimants.
• May not be liable under tort, but may be liable under HRA
• Direct application: courts have allowed parallel claims of (1) free-standing human rights claims under the HRA, and (2) bringing action against a public authority to fix gaps in the law

Question 10

Michael v Chief Constable of South Wales Police (2015)

Answer 10

• Example of police not being liable in torts, but in violation of HRA, so a domestic remedy could be given
• Victims can apply a free standing human rights claim to court under section 7 and 8 of the HRA
• Claimant’s family was killed in a domestic violence incident which the police were warned about
• The police failed to respond adequately; telling the victim to stay home led to her murder
• Family lost the tort case because there was no duty of care owed by police to investigate crimes
• However, the court conferred that the victim’s ECHR Article 2 rights were violated

Question 11

Smith v Chief Constable of Sussex Police (2008)

Answer 11

• ## Claimants used ECHR article 2

Question 12

Commissioner of Police of the Metropolis v DSD (2018)

Answer 12

• The court found that the police had no duty of care for improper investigation of the London black cab rapist
• However, victims used ECHR article 3 to claim for rape, which was successful (freedom from torture covers rape in this instance)

Question 13

Horizontal vs Vertical development of the law

Answer 13

Horizontal = courts adjudicating between two private parties
Vertical = courts adjudicating between claimant and public authority

Question 14

Two ways in which the horizontal effect/development works

Answer 14

1. Use human rights to develop common law
2. Use human rights to develop new torts

Question 15

Horizontal development of common law

Answer 15

• Judges use human rights to develop common law gaps incrementally
• Judges are reinterpreting legal principles to make them more consistent with human rights protection
• Usually because of the duty of care’s limited application
• Over time, claimants successfully challenge gaps in the duty of care, and common law develops

Question 16

Horizontal development of new torts

Answer 16

• The courts use human rights principles to create new torts
• E.g. misuse of private information: there is no protection of privacy in English law, but this is developing in pockets, e.g. where privacy is protected under specific circumstances
• Judges used articles 8 and 10 of the HRA

Question 17

Five elements of negligence

Answer 17

• Claimant must prove all elements occurred
  1. DUTY Duty of care owed to claimant by the defendant
  2. BREACH Duty of care owed to claimant was breached by the defendant
  3. CAUSATION Duty of care breached caused damage
  4. DAMAGE Claimant’s loss must be “actionable damage” (more on this below)
  5. REMOTENESS Loss must not be too remote
  6. No applicable defences (not necessarily an element of the negligence action but is still important)

Question 18

Negligence and duty of care

Answer 18

• The duty of care is an indispensable requirement for a claim in negligence; the failure to take reasonable care cannot give rise to liability
• Duty of care is owed only to those who might foreseeably suffer damage because of the defendant’s negligence

Question 19

Five elements of tort are dependent on each other, quote from “Three Essays on Torts” page 65 by Stapleton

Answer 19

“the five elements of the tort of negligence are, analytically, dependent on each other in a sequential way”

Question 20

Balance of probabilities

Answer 20

• In civil cases, the standard of proof is on a balance of probabilities
• More likely than not; burden of proof is on the claimant
• Consequences of civil cases are not as serious as criminal law, where proof beyond a reasonable doubt is needed

Question 21

Negligence and proof of damage

Answer 21

• For negligence: no actionable damage, no tort!
• In negligence, proof of actionable damage is necessary
• E.g. negligence claim in relation to actionable damage

Question 22

Actionable damage

Answer 22

• Damage sufficiently serious to be recognised in law
• Negligence requires actionable damage
• Usually concerning physical injury, nervous shock, economic loss; courts take action depending on duty of care and type of complaint
• Actionable negligence consists of the neglect of the use of ordinary care or skill towards a person to whom the defendant owed a duty of care

Question 23

Actionable per se

Answer 23

• Do not need proof of damage
• The existence of the tort does not depend on the claimant proving damage
• However, this does not apply to negligence, because negligence requires proof

Question 24

Rothwell v Chemical & Insulating Co Ltd (2007)

Answer 24

• Testing boundaries of physical injury actionable damage
• Victim had condition called plural plaques (scarring on the inside of the lungs) which is associated with a higher risk of developing other asbestos diseases
• The court said that internal scarring did not count as actionable damage; this is strange because external scarring is usually actionable damage

Question 25

Yearworth v North Bristol NHS Trust (2009)

Answer 25

• Stretched the boundary of what is considered property, and property damage
• Fertility clinic threw away frozen sperm led to victim suffering psychiatric harm
• Court considered this property damage

Question 26

Murphy v Brentwood DC (1991)

Answer 26

• The foundations of the house were faulty but the defendant inspected and still approved the house; however, the foundations cracked and caused damage to the rest of the house
• The claimant sold the house as he could not afford to repair it; he lost money as he got less than he paid for the house originally
• Claimant sued for negligence saying the house should not have been approved
• The court said that the house did not qualify as damaged property in torts, because a house cannot damage itself- the house cracking did not count as damage, it was just a house worth less than the claimant paid for
• Instead, the court applied the tort concept of pure economic loss- these are recoverable but requires a special test

Question 27

McFarlane v Tayside (2000)

Answer 27

• Curts struggled to fit harm in the notion of damage, but they wanted to compensate the claimants
• The courts were reluctant to define pregnancy as injury, and to consider the cost of raising a child as damages
• Two cases of sterilisation failed, and the claimants tried to seek compensation for the cost of raising another child
• The court refused to allow the parents’ claim for the costs of raising the child
• However, allowed the claimants’ appeal in part; the mother was entitled to damages for the pain, suffering, and inconvenience of pregnancy and childbirth for extra medical expenses

Question 28

Rees v Darlington Memorial Hospital NHS Trust (2003)

Answer 28

• This case qualified/built on McFarlane, holding that while in the case of wrongful birth, policy considerations preclude the award of damages for the costs of bringing up a normal healthy child, but the courts may provide a non-compensatory award
• Claimant was disabled which made raising more children difficult; she had more children due to NHS’ fault. Tried to claim for the costs of raising another child
• Compensated partially (only for lifestyle change damages) as the court said that there was not a huge change to her lifestyle as an existing mother
• Unrealised damages are non-actionable in tort law

Question 29

Unrealised torts/damages

Answer 29

• If no person/property is harmed it is an unrealised wrong
• E.g. driving car on road carelessly, but no one is harmed