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Introduction to Tort Law

(Non-examinable, for information only)

Terminology

• Tortfeasor – someone who commits a tort, defendant

• Wronged party – person against whom the offence is committed,
claimant
• Actionable per se – tort without showing you have suffered damage

Types of Torts

• Tort = wrong that involves a breach of a civil duty

o Negligence
§ E.g. accidental harm
o Employers liability
§ When employee sues employer for breach of duty
o Vicarious liability
§ 3rd party sues employer for a tort committed by an
employee
§ NB you can only sue one party at a time, and cannot get
full compensation from both, so generally try to sue
employer, then if fail, the employee
o Clinical negligence – position of medical authority and fail to fulfill
duty to patients

o Tresspass to person – no need to prove loss (actionable per se)

§ Assault – threat of harm
§ Battery – contact
§ False imprisonment

o Tresspass to land (not covered)

o Occupier’s liability
§ Visitors
§ Tresspassers
o Nuisance
§ Private
§ Public
o Defamation – damage to reputation
§ Libel – published in a permanent form
§ Slander – not published in permanent form (if recorded
orally, it becomes libel)
o Product liability (not covered)

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Types of Losses

• Physical injury
• Economic
• Damage to reputation
• Nervous shock
• Loss of enjoyment of land
• Damage to property

The Role of Public Policy and the Interests Protected

• Tort regulated by substantive principles of statute and case law

• Policy impacts decisions, though – social, political and economic impact of
court’s decisions considered in narrowness / broadness of scope of
decisions
o ‘Floodgates’!
§ E.g. nervous shock – McLoughlin v O’Brian – claimant not
present at scene of accident (open floodgates)
§ Alcock v Chief Constable of South Yorkshire (floodgates
controlled) – Hillsborough disaster
• Crushing liability vs insurance
o More likely to be found liable where (should have) had insurance –
connected loss distribution argument = spread cost through
society
§ Lamb v Camden Borough Council
o Crushing liability = defendant’s responsibility disproportionate to
the wrong committed
§ Spartan Steel v Martin – claim not allowed against man for
cutting power cable of factory (meaning loss of power for
14 hours)
• Defensive practices
• Deterrence
o Cassell v Broome
• Maintaining high standards
• Justice – hard to define!
o McFarlane v Tayside Health Board – justice cited as reason for not
awarding damages for cost of bringing up child to age of 18 (born
following sterilisation), even though tort = put claimant in position
they would have been in had the tort not been committed.

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Fault Liability

• Tortfeasor must carry out particular act

• Sometimes, also state of mind:
o Intentionally – deliberately and knowingly performed an act fully
cognisant of the consequences it would have
o Negligently – careless about whether or not the act will result in
certain consequences
o Maliciously – performs an act out of spite or with an evil motive.

• Permitted act + malice ≠ tort usually (Bradford Corporation v Pickles).

o Discharging fire arm not tortious, but for intent to disturb animals
= Hollywood Silver Fox Farm v Emmet [1936]).

Why Require Fault?

• Deterrence effect: responsible conduct will only be encouraged if

accountability reserved for irresponsible conduct.

• Prevent opening of floodgates

Strict Liability

• No requirement to prove state of mind

o Case law
§ E.g. Liability for bringing or accumulating something on
own land that escapes onto other land (e.g. chemicals),
causing foreseeable damage = Rylands v Flecther –
reasonable care to prevent irrelevant.
o Statute
§ Defective products under Consumer Protection Act 1987.
• Not absolute liability – defences available

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