Tort Law

Negligence

BU7003
Level: 7
Credit:15

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What is “Tort”?

• Latin from the word ‘Tortum’ meaning ‘to

twist’
• Conduct which is not straight or lawful, but
twisted, crooked or unlawful.
• French meaning: ‘harm’
• The English equivalent to ‘wrong’
• It is about responsibility within Law, it deals
with injuries, loss and obligations.
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Torts
There are different types of Torts/ wrongs for which a person
can claim compensation, examples are :

• Negligence, when a person through carelessness injures

another.
• Defamation- is a tort which concerns a person’s reputation.
• Trespass to the person/land- assault and/ or battery
• Nuisance, neighbours playing loud music till early hours of
the morning.

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Torts

The primary aim under the law of torts is to :-

• To claim compensation for the victim

• To deter not only the wrong doer [Tortfeasor]
but others in their position from doing this
wrong
In some legal systems it includes a third aim
• To punish the wrong doer (1)
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Comparison of Tort with Contract law
Both areas of law are often referred to as the “Law of
Obligations” – duties.

• Both areas of law compensate victims of harm done to them.

• Both areas are ultimately based on duties owed by parties to each other.

In contrast
• In contract the parties impose the duties on themselves in a consensual
way through the contract.[2] It affects only the parties to the contract.
• In the law of tort the specific duties are imposed by the law, and they
apply to everyone likely to be affected by the tort. NO need to have a
contract.
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Negligence – One branch of the law of
Torts
Negligence is the area of Tort law which we will examine in
Business law.
It is an area which protects various interests,
• Personal security
• Economic
• Property
E.g.: Medical negligence; Careless driving ; Employers not
providing safe environment for work; ill equipped or badly
trained staff; Bringing dangerous things on to land,
animals ,weapons, buildings, machines.
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Negligence Example - Video

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Bahrain

• Bahrain doesn’t have a ‘code of laws’ for

Tortious liability as such.
• All liability/ specifically, negligence issues are
covered under the Bahraini Civil Code.
• These are found mainly under Chapter 3
Articles 158-181

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Civil Code

Art. 158

Every fault that has caused damage to others

makes an obligation upon the person who
committed it to pay compensation.

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Negligence
• Every fault that has caused damage to others makes an
obligation upon the person who committed it to pay
compensation. Art.158

Basically this means ‘any error, mistake , blunder you made

that caused injury to another makes you responsible for
that injury ‘.

The question for the lawyers is how do we assess this

concept known as fault? [3]

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Negligence.
• In order to answer the fault question, a number of other
questions come into play.

Lawyers called these questions tests.

• Bearing in mind that much of Bahraini law is based on British law

we need to turn to a very old case, which helps us to understand
these tests/questions.
• These tests have developed and been refined over an number of
years. But it all started with a very famous case called Donoghue
v Stevenson (1932)
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Donoghue V Stevenson 1932– Video

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Failed first attempt!

• Mrs. Donoghue tried to sue the café but was

unsuccessful as she did not have a contract with the
café.
• The friend paid for the drinks and so the friend had
a contract.

• However…the friend did not suffer any injury and

therefore, cannot sue for anything under the
contract!
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Negligence

• This case helped to identify certain elements

which need to be present in the facts in order
to assess fault.
• Once these elements been recognized and
established, the Tort of negligence can be
proved.
• In his famous judgment the British judge, Lord
Atkin identified the 3 major elements.
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Negligence

• First is the existence of a duty of care required by

law, that was owed by the defendant to the
claimant[victim].

• Second is the breach of this duty falling below the

standard required by law.

• Third that the damage caused by the defendant was

not so remote a consequence of his/her breach. [4]
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Duty of care: The first element

• This is known as : the ‘Neighbour Principle’

• Examine:
“You must take reasonable care to avoid acts or omissions
which you can reasonably foresee are likely to injure your
neighbour. Who, then, in law is my neighbour? The answer
seems to be- persons who are to closely and directly
affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing
my mind to the acts or omissions which are called into
question”- Lord Atkin in Donoghue v Stevenson, 1932.

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To establish this first element :
Duty of Care
In the paragraph above a number of statements are made
to establish duty of care.
 Reasonably foreseeable. Take reasonable care to avoid
actions which one could reasonably envisage occurring and
causing harm

 Legal proximity [5] The harm caused must be to someone

who one should reasonably be aware could be injured if
one acts or fails to act. Relationship of the parties/
closeness in distance and time.
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Duty of care continued

• Fair, just and reasonable to impose duty. Is it

[7]

fair, just and reasonable to impose this duty

of care on person[s] who are in a similar
position as this defendant.

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Summary : The ‘three stage test’ to
establish duty
• To know if there is a duty of care, there is a
three stage test:
• Was it reasonable foreseeable that the
defendant’s carelessness would cause injury?
• Is there proximity between the defendant and
the injured person?
• Is it fair, just and reasonable impose this duty on
the defendant?

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Reasonable Foreseeability

The court will ask whether given the factual

scenario, the defendant should have foreseen that
careless conduct on his part would cause harm or
damage to the claimant.

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Proximity
• This requires the court to examine the closeness of the
relationship between the claimant and the defendant
when evaluating the careless conduct and the harm
caused. This ‘closeness’ can mean –physical proximity
in terms of time or space

• proximity in terms of the parties’ relationship (e.g. employer

and employee/doctor and patient, manufacturer and
customers etc.)
• proximity in terms of the connection between the conduct
and the harm (e.g. how close was the claimant to the
defendant when the careless at happened?) 21
Fair , justice and reasonable
The Courts will consider policy consideration; is it in the public
interest to impose this duty of care on the defendant? Are
there any policy reasons why the duty should not be imposed?
Hill v Chief Constable of West Yorkshire (1988)

Facts: In spite of a massive police search, the "Yorkshire Ripper" remained free for several years
and murdered a dozen young women. The mother of his last victim sued the police for negligence
in failing to catch him, alleging inefficiency and errors in their handling of the investigation.

Held: The House of Lords said she could not succeed: the police owed no duty of care towards
Susan Hill to protect her from the Ripper. The mere investigation of a crime did not create an
enforceable duty of care between the police and Sutcliffe, nor between the police and Miss Hill,
who had been at no greater risk than most other young female members of the public. She did
not have a specific relationship, except in the wider sense of being a member of the public at
large.

• A duty of care may not be established unless it is fair, just and reasonable . And not damaging
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to the public interest at large. [9]
Duty of care test:

• The answer to all three requirements must be

YES…otherwise there is no duty of care and no
negligence!

• ONLY once a duty of care is established, then

you move on to the second stage of
negligence: this duty has been breached.

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Duty of care

• Test your learning 

• Please refer to the activity sheet on Moodle
and attempt all questions.
• Take the vote on Moodle!
• You must come prepared with your answers in
the next class to discuss the activities.

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