General Principles of Tortious Liability

Question 1

What is a “tort”?

Answer 1

A tort is a civil wrong which is not a breach of trust or contract

Question 2

What is the purpose of a “tort”?

Answer 2

The purpose of tort is to compensate for wrong doing by one person to another, for example:

Damages for a road traffic accident victim

An employee claiming for injuries at work

A libel action over publication of a defamatory statement in a newspaper

Trespass, on land, on the person and on goods.

A liability for the dangerous escape of something onto another’s land.

Deceit or fraud.

Question 3

All torts arise from a duty not to….

Answer 3

…harm the interests of other people.

Question 4

Does there need to be an existing relationship between the parties for a tort to arise?

Answer 4

No, there does not need to be an existing relationship.

Question 5

Who is the “tortfeasor”?

Answer 5

The person carrying out the tort or civil wrong is known as the tortfeasor.

Question 6

Who can be a tortfeasor?

Answer 6

The range of tortfeasors is wide and includes:

• Individuals
• Companies
• The Crown
• Employers
• Employees
• Dangerous Drivers
• Medical Practitioners
• Professionals – solicitors, accountants

Question 7

What are the elements of tort?

Answer 7

Most torts include:

• An Act or Omission by the defendant.
• Which has caused harm to the claimant.
• There must be proof that the defendant’s act or omission caused the harm alleged.
• The defendant must be at fault in some way.

Question 8

Can a tort be committed where there is no harm caused?

Answer 8

Yes, some torts can be committed without such harm, such as trespass to land.

The tort is committed simply by entering the land even if that does not cause any actual harm to the land owner.

Such torts are known as “actionable per se”.

Question 9

What is an “actionable per se” tort?

Answer 9

A type of tort committed where there does not need to be actual harm caused.

Question 10

What is a strict liability tort?

Answer 10

Most torts also require the defendant to be at fault, i.e. they deliberately acted wrongfully, or failed to prevent some harm from occurring when they could reasonably have been expected to do so.

Question 11

What does policy making grounds mean in respect of tort?

Answer 11

Judges must consider the best interests of society as a whole when making judgments that set precedent.

The common matters for consideration are:

• The impact on insurance
• Floodgate issues
• The risk of deterring desirable activities.

Question 12

What is the impact on insurance re: tort law?

Answer 12

Many tort claims are covered by insurance. The higher the risk to the insurance companies of claims being paid, the higher the insurance premiums cost. Higher costs have a detrimental effect on society and businesses.

Question 13

Mirvahedy v Henley (2003) - Escaped Horse Claim

Describe the issues

Answer 13

The owners of a horse were liable for the damages suffered following a collision with the horse that had escaped from a field. Before this case, liability only arose where an animal’s behaviour was abnormal, but the decision now meant that owners of animals would be liable when the actions of the animal were normal.

The impact of this case resulted in insurance premiums for riding schools and horse stables increasing significantly.

Question 14

What is the floodgate issue?

Answer 14

The floodgate issue is one that if the courts were to decide to extend liability in particular circumstances, it may result in a high volume of claims arising.

The high volume may overwhelm the courts and could also increase insurance costs. It could also lead to uncertainty for people who could potentially be sued.

Question 15

Victorian Railways Commissioners v Coultas (1888)

Describe the issues (floodgate)

Answer 15

In this case, the court was concerned with a case of nervous shock, and the court was concerned that should that give a right to damages, it could open the floodgates for similar claims.

Question 16

What is the risk of deterring desirable activities

Answer 16

If the law makes it easy to make a successful claim, this may deter potential defendants from undertaking in that activity at all.

For example, schools and colleges have been deterred from undertaking school trips because of the fear of being sued.

Question 17

What does section 1 of the Compensation Act 2006 require the court to consider?

Answer 17

In a negligence or breach of statutory duty claim whether the defendant should have taken such steps to meet a standard of care, whether requiring those steps to be taken might:

a. Prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way; or

b. Discourage persons from undertaking functions in connection with a desirable activity.

The courts can take this into account if the activity is generally considered beneficial to society, when deciding how wide liability for harm should be.

Question 18

Does there need to be “fault” to have an action?

Answer 18

To establish liability in tort, fault is essential.

Question 19

There are three main reasons for a fault requirement:

Answer 19

1. The floodgate issue.
2. Fairness – making individuals and companies more likely to take care to avoid harming others so they can avoid being sued. If a person is liable regardless of fault, there is little point in taking care.
3. Deterrent – to make a person pay for their wrongdoing if they could have avoided doing it.

Question 20

There is a strict liability for damages under which acts?

Answer 20

a) Consumer Protection Act 1987

b) Animals Act 1971