Introduction to Tort

Question 1

What is tort law?

Answer 1

A civil wrong, other than a breach of contract

Question 2

Define tortious liability

Answer 2

Tortious liability arises from a breach of duty imposed by law and its breach is resolved by an action for unliquidated damages

Question 3

How does tortious liability differ from contractual liability?

Answer 3

Tortious is not voluntary - it is imposed by the courts

The tortfeasor receives no benefit in return for accepting the liability, unlike in a contract

Question 4

What are some example of tortious liability?

Answer 4

Somebody injured in a road accident
An employee injured at work
A landowner who has had a trespasser on their land
A patient who is injured by a negligent doctor

Question 5

What is tor heavily subsided by?

Give examples

Answer 5

Insurers and insurance policies

Doctor has insurance to pay out claims
Employer has insurance to pay for employee’s injury claims
Car insurance

Question 6

What are the remedies available for a tort?

Answer 6

Damages

Equitable remedies

Question 7

What are damages?

Answer 7

The common law remedy available as of right to the successful party

Question 8

What is the aim of damages in tort?

Answer 8

Restorative

- to place the injured party into the financial position they would be in if the tort had never been committed

Question 9

What are the time limits to bring claim for damages for a tort?

What about for an equitable remedy?

Answer 9

Personal injury = 3 years from injury or diagnosis
(Latent Damages Act)

All other torts = 6 years

There are no formal time limits
-> BUT delay defeats equity

Question 10

What are the 6 defences available in tort?

Answer 10

1. Contributory negligence
2. Volenti non fit injuria
3. Ex turpi cause non oritur action
4. Act of God
5. Personal Defence
6. Necessity

Question 11

Give examples for:

> Act of God

> Personal Defence

> Necessity

Answer 11

Lightning hitting a tree and causing somebody to fall out and get injured

Reasonable force in response to what is being portrayed to you

Pushing somebody out of the path of an oncoming car, but results in causing them injury

Question 12

What happens if one of these defences is established?

Answer 12

The defendant is not liable

-> doesn’t pay compensation

Question 13

What is contributory negligence?

What type of defence is this?

What happens if contributory negligence is established?

Give a general example

Answer 13

Where harm is attributable partly to the fault of the both the defendant and the claimant

Partial defence

Any award of damages may be reduced to account for the claimant’s contributory negligence
(But it can never be a 100% reduction)

Driver not wearing seatbelt in a crash
= 25% reduction in damages payable to them

Question 14

Name 3 case law examples

Answer 14

Capps v Miller [1989]

Jackson v Murray (2015)

Nettleship v Weston [1971]

Question 15

Briefly explain Capps v Miller [1989]

Answer 15

Motorcyclist claimant suffered head injuries when defendant crashed into him.

C was wearing a helmet but the chin strap was unfastened.

Head injured C suffered from the crash were increased by his helmet coming off.

Held:
C’s damages were reduced by 10%, due to the his responsibility for his injuries

Question 16

Briefly explain Jackson v Murray (2015)

Answer 16

Claimant was a 13yr-old girl who crossed a main road from behind a bus, but was severely hit by the defendant’s car travelling at 50mph.

Held:
Initially the claimant’s contributory negligence was found to be 90%
-> reduced to 50% as 13yr old not excepted to have same level of judgement as an adult

Question 17

Which Act governs contributory negligence?

What does this ensure?

What else does it include?

Answer 17

The Law Reform (Contributory Negligence) Act 1945

Damages shall be reduced to such extent as the court thinks just and equitable in regard to the claimant’s share in responsibility for the damage

Predetermined reductions for common situations

Question 18

Briefly explain Nettleship v Weston [1971]

Including defences used

Answer 18

Defendant had driving lessons with her friend claimant, (who checked Weston’s insurance covered her for passengers before agreeing to go).

On a bend, C told D to straighten up but she panicked and approached the pavement. C grabbed the handbrake and wheel, but the car mounted the pavement and hit a lamppost.

C fractured his knee.

Defences:

1. Standard of care should be lowered for learner drivers
2. Volenti non fit injury by agreeing to get in the car with a learner, C had voluntarily accepted the risk

Held:
A learner driver is expected to meet the same standard as a reasonable qualified competent driver.

Volenti did not apply as D had checked the insurance, which demonstrated he did not waive rights to compensation.

Damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945.

Question 19

What is volenti non fit injuria?

What type of defence is this?

Answer 19

“to one who volunteers, no harm is done”
or
“no harm can be done to one who consents”

Full defence

Question 20

What are the 2 elements to volenti non fit injuria?

What are the 2 types of situations where this can occur?

Answer 20

1. The claimant knows the risk
2. The claimant consents to accept the risk
3. Consent to the infliction of harm
4. Consent to the risk of harm inflicted accidentally

Question 21

Give the case law example for volenti non fit injuria

Briefly explain the case

Answer 21

Morris v Murray [1991]

2 were drinking all day and defendant suggested they took his plane out. Claimant agreed and drove them to the airfield.

Defendant flew the plane but he crashed, killing himself and injuring claimant.
The autopsy showed defendant had consumed the equivalent of 17 shots of whiskey.
Claimant sued deffendant’s estate.

Held:
Claimant was defeated by volenti non fit injuria.
His action showed he accepted a ride in a plane with a heavily intoxicated pilot, so he voluntarily accepted the risk of injury and waived the right to damages.

Question 22

What other circumstances can volenti non fit injuria be used?

Answer 22

Claimant has agreed not to sue

Defendant has excluded liability by a contractual term

Question 23

Can volenti non fit injuria be used in employment law?

e.g. if an employee has been negligent

Answer 23

Not easy to prove employee consent
- often have little choice whether to agree to conditions imposed by employer

But it is possible for the employer to successfully invoke volenti

Question 24

What does the Road Traffic Act 1998 state re volenti?

Answer 24

s.149

volenti is not available as a defence where a passenger in a car sues a driver who should be compulsorily insured

Question 25

What is ex turpi causa?

Answer 25

An action may not be founded on illegality

e.g. if a criminal sustains an injury while committing a crime

Question 26

Give 3 case law examples for ex turpi causa

Answer 26

Vellino v Chief Constable of Greater Manchester [2002]

Revill v Newbery [1996]

Ashton v Turner (1981)

Question 27

Briefly explain Vellino v Chief Constable of Greater Manchester [2002]

Include defence used

Answer 27

Claimant was a known offender.

He was arrested, but while in the car of the police, he jumped out a window and causing a fractured skill, brain damage and tetraplegia which rendered him totally dependent on others.

The police knew he was likely to escape and that such an activity was dangerous, but did nothing to prevent him jumping.

Claimant sued the police for breaching their duty of care to stop him injuring himself.

Defence:
Ex turpi causa
- criminal offence for an arrested person to abscond

Held:
Ex turpi causa excluded the police’s duty of care.

Also, it is against public policy to allow a claimant to recover damages against the police if he hurt himself in an escape attempt.

Question 28

Briefly explain Revill v Newbery [1996]

Which defences were raised?

Answer 28

Newbery owned a shed which kept being broken into, so he stayed in it one night with a shotgun.

Revill tried to break into the shed, and Newbery shot him through the door.

Both parties were prosecuted, but Revill brought civil action against Newbery for his injuries.

Defences:
Ex turpi causa
Accident
Self-defence
Contributory negligence

Held:
1. No to volenti - Revill did not consent to being shot

2. No to self-defence - the shooting was not in response to the propensity of violence shown to Newbery
3. No to ex turpi causa - Revill broke the law by breaking into the shed, but Newbery broke the Occupier’s Liability Act

Revil was successful, but damages were reduced by 2/3 under Law Reform (Contributory Negligence) Act 1945

Question 29

Briefly describe Ashton v Turner (1981)

Answer 29

Claimant was a car passenger and was injured when the defendant crashed the car, after they had both committed a burglary.

D had been driving and drove negligently to escape the crime scene.

Held:
As a matter of public policy, law would not recognise a duty of care owed by one participant in a crime to another.

(Even if a DoC was owed, C willingly accepted the risk of negligence and injury resulting)

Question 30

What are the 2 types of remedies in tort law?

Answer 30

Common law remedy = damages

Equitable remedies

Question 31

What are the 2 types of damages available in tort law?

What duty to you have re damages?

Answer 31

1. Compensatory damages
2. Aggravated damages

Duty to mitigate

• > take reasonable steps to prevent accumulation of harm and losses
  e. g. not getting medical attention

Question 32

What are compensatory damages?

What are the 2 types?

Answer 32

‘resitutio in integrum’
= restoring claimant to position they would have been if the tort was not committed

1. Pecuniary
   = gains prevented by the tort, expenses caused by the tort and expenses rendered futile by the court
2. Non-pecuinary
   = pain, suffering, loss of amenity and mental distress

Question 33

What are aggravated damages?

Answer 33

Compensation for the mental distress caused by the manner of the wrong, or the tortfeasor’s conduct subsequent to the wrong

Question 34

What equitable remedy is available in tort?

Answer 34

Injunctions

• Prohibitory = order to stop doing something
  e. g. stop trespassing
• Mandatory = order to do something