Lecture 1 - Tort Law Introduction PDF

**[History]** Tort law is about accidents were you allocate costs when a harm causing event happens e.g. car crash (caused by someone, who has to pay liability for injuries and damage. - Courts were holding that, unless a duty of care had been created by contract, accidental costs lay where...

**[History]** Tort law is about accidents were you allocate costs when a harm causing event happens e.g. car crash (caused by someone, who has to pay liability for injuries and damage. - Courts were holding that, unless a duty of care had been created by contract, accidental costs lay where they fell **Winterbottom v Wright (1842) 10 m & w 109** - Winterbottom was contracted to drive a mail coach - Wright was contracted to maintain the mail coach - Both had contracts with the post Master General; but not with each other - Whilst Winterbottom was driving the coach, a wheel collapsed and when he was injured - Held no contract between Winterbottom and Wright. Wright owed a duty to the Post Master General, and not to the driver. - Later Courts attempted to devise a finite list of cases where a duty of care outside contract is owed. They then used that list to extend the law 'by increments' to do 'practical justice' - Gun sold to father knowing that it was purchased with the intention for the son to use the gun - Seller was aware the gun was malfunctioning - Son injured when the gun misfired **George v Skivington (1869) LR 5 Ex. Misrepresentation** - **Hair wash brought by the husband for use by his wife (the claimant)** Overall, courts were very reluctant to enunciate a general principle of care in the absence of a contract Case Law was "defendant-friendly" this changed.... The tale of the snail and the ginger beer **[Donoghue v Stevenson (1932) AC 562]** - It is a general common law principle that we should take reasonable care not to harm others through our acts (Although this did not come about immediately) F buys a bottle of ginger beer from M and offers it to D. D drinks from the bottle and finds that it contains the decomposed remains of a snail. D falls ill and sues S, who manufactured the bottle. Can D succeed? One of the most famous common law cases. **The Neighbour Principle** "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answers seems to be -- persons who are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question'. Importance: - Harm which is reasonably foreseeable; and - May injure my neighbour (proximity?) **Is this needed?\ **Other branches of law do not provide a comprehensive answer to the question of accidental cost allocation Criminal law is concerned with punishment by the state - Punitive damages? Not In English law - Contract law is relevant only when there is a prior agreement about cost allocations - However, such agreements are not always enforceable - Insurance law does not settle whose insurer must pay - But the availability of insurance may make a huge difference for less well of defendants. Accidents cost a LOT Torts Different types of torts: - Negligence: harm causing events - Strict liability: Does not take into consideration the 'fault' of the tortfeasor it is just accepted there must have been fault (e.g. driving above the speed limit; product liability - Intentional torts (e.g. defamation; trespass; assault; battery) **Theories of Tort Law** - **Corrective justice** We want the person who caused the harm to compensate for any harm caused. Most important person in tort law is the victim and allow them to get compensation and this is done normally through corrective justice - **Distributive justice** It's often found the person who caused the harm often can't afford it to the degree that's why there is 3^rd^ parties often e.g. insurance, employers Fun Fact: Insurance premium works by a person crashing equally spreads across everyone - **Concept of the normative equilibrium** Everybody is on the normative equilibrium When an accident happens we are knocked out the equilibrium When person who causes accident has to be the person who brings you back Why is this such a difficult issue? - Must ensure and support a victim of harm - Equal measure of liability for the fault of the harm - Ensuring social justice is met - Economic factors - Political factors and strict liability **Rylands v Fletcher** - Used to be a unique rule which governed the accumulation of hazardous substances that could foreseeably escape and cause harm. - In the past this has included the accumulation of water, noxious materials (e.g. chemicals; radioactive material); animals etc. However, most of these are now governed by statutes - Once a political party decide something is dangerous and it is in their political interests (usually through social perception of pressure) to legislate and control usage they do so. Dangerous animals for example, these could foreseeably cause property damage and personal harm and this could cause issue within different groups of electorates. - There could be health risks if animals escaped and were harmed themselves (e.g. rotting carcasses) **Mixed System** 1. Basic premise of corrective justice 2. Underlying elements of distributive justice - Public healthcare (NHS) -- National Insurance - Insurance (i.e. compulsory car insurance, business insurance; house insurance) - Benefit system - Charity support **Alternative Systems** - In New Zealand: **Accident Compensation Corporation** - No fault scheme - Funded out of general taxation and an employer levy - Historically, paid out about 40% of claims in 4 categories: 1. treatment and rehabilitation, including the cost of disability aids, home modifications, and vocational retraining; 2. compensation for loss of earnings (up to 80 percent of earnings at the time of injury, up to a set maximum); 3. one-time lump-sum compensation of up to US\$70,000; and 4. support for surviving spouses and children under 18. **Rules govern how liability is allocated courts can just say who. E.g. one factor economic factors** **Problem scenario:** A works in B's factory. During the course of her work, she carelessly stumbles on C, a customer who happened to be on the premises. C falls and breaks his elbow. Try to determine who should be liable for C's damage? Potential Answers: A hired B B covered by Insurance -- Distributive Justice **The Cynic and the Idealist** **[The Cynic]** - 'To say that a person owes a duty of care in a particular situation means (and means only) that the person will be liable for causing damage by negligence in that situation.' - No obligation is owed to a person prior to harm being caused; - Any duty arises from the harm itself -- therefore there is only a duty to compensate for the harm caused. - Fault based liability **[The Idealist]** - A primary duty is owed to a person to a person to protect against potential harm; - A secondary duty is then owed to compensate against should that harm occur; - A duty is thereby owed to a person prior to any harm being caused -- and the standard set is that of 'reasonability' - Wrong based liability **What do we mean by negligence?** **Primary Question:** Negligence concerns the allocation of costs when a harm causing event occurs **Two central features** -- 1. Responsibility in negligence is personal and normally applies to the full cost of an accident 2. If no negligence is found then the costs lie where they fall (i.e. with the victim) **General Rule:** A person is only held responsible for the cost of an accident only insofar as they failed to take **[reasonable care]** to avoid it **Basic elements:** Duty of care, breach, causation (and defences) **Elements of negligence** - Establishing a duty of care - Establishing a breach of that duty - Establishing causation between the harm caused and the breach of duty - Applying any defences that may be relevant **Development of the Tort of Negligence** The "neighbour principle" enunciated by Lord Atkin did not result immediately in a general tort of negligence; It did introduce the principle of manufacturers' liability to the final users of their product (Grant v. Australian Knitting Mills \[1936\] AC 85 (PC)). The case itself was more concerned in the immediate term with providing justice for Mrs Donoghue. Case: Treatment is the material goes through certain manufacture wash. This pair had the chemicals still on and not washed properly. Person suffered bad burn, Question came can he sue even if he didn't purchase as it would still cause harm. Can they have a strict liability case, did they have to establish who was negligent. No use neighbouring principle between consumer and manufacture. Moving forward - **Starting point:** - Donoghue v Stevenson -- The Neighbour principle - 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour' - **Where to next?** - **Is this type of test always needed?** No -- duty of care can be established. Strongest method is through Statute. **The Categories** Obvious categories: - Statutory duties of care -- primary source of law, tells you what's involved, codified. Some statutes aren't as specific who is protected etc. - Incremental category (following judicial precedent) Other categories: - Assumption of responsibility - **[Novel]** categories The Neighbour Principle **Development Since Donoghue v Stevenson** - As the decades progressed after *Donoghue*, the duty of care was found to exist in certain types of situation, (often where there was a pre-existing relationship between the parties) - ***Hedley Byrne v. Heller*** \[1964\] AC 465 -- established a duty of care for those professionals who made a negligent statement which was relied upon and caused loss; - Still there was no overarching duty of care for negligent acts or formal judicial pronouncement of a duty of care principle; - ***Home Office v Dorset Yacht Co Ltd*** \[1970\] AC 1004 (**extends liability to 3^rd^ Party**) Lord Reid said in relation to Lord Atkin's neighbour principle: "...the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion." **Anns v. Merton London Borough Council \[1978\] AC 728 -- Statutory Duty** **This case extends neighbour principle and codifies first thing that happens you have reasonable foreseeable harm** It was not until ***Anns v. Merton London Borough Council*** \[1978\] AC 728 that the neighbour principle was adopted in a formal test for negligence Legal Question: Where the defendants (Merton LBC) under a statutory duty to inspect foundations of a block of flats Held: Liable for not exercising reasonable care when exercising their discretion to inspect that the proper regulations had been complied with The Anns Test It was not until ***Anns v. Merton London Borough Council*** \[1978\] AC 728 that the neighbour principle was adopted in a formal test for negligence: the ***Anns*** test; The two pronged ***Anns*** test for duty of care was set out by Lord Wilberforce: - A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage, such that carelessness on the part of the former is likely to cause damage to the latter; - There are no considerations relevant which may reduce or limit the scope of any imposed duty. This proved to be the high water mark of the scope of duty of care in English Tort Law. Courts should go on to consider whether valid reasons liability should reduce or limit liability. This tests looks like... Its on claimant to argue reasonably foreseeable harm Moves to defendant to say maybe there is a duty but maybe we shouldn't held liable due to reason x y and z Extends principle far and we assume a duty of care were gonna look for why there isn't a duty of care rather than to impose a duty of care which is opposite what there should be. **Moving Forward** - Lord Goff, *Smith v Littlewoods Organisations Ltd* \[1987\] 1 AC 241 (HL) 'the broad general principle of liability for foreseeable damage is so widely applicable that the function of the duty of care is not so much to identify cases where liability is imposed as to identify those where it is not' Key cases: - *Junior Books v Veitchi* \[1983\] 1 AC 520 (HL) - *Yuen Kun-Yeu v Attorney General of Hong Kong* \[1988\] AC 175 (PC) - *Murphy v Brentwood District Council* \[1991\] 1 AC 398 (HL) Caparo v Dickman \[1990\] UKHL 2 Negligence of 3^rd^ party at accounting firm signed of by 2 directors. Sued by shareholders Who is accountant liable to: shareholders group shareholders, individual transaction or general public as whole **The Caparo Test (AKA Tripartite test)** - Was it ***reasonably foreseeable*** that the defendant's failure to take reasonable care could cause harm to the claimant? - Was there a ***relationship of proximity*** between the defendant and the claimant - It is ***fair just and reasonable to impose a duty of care*** on the defendant not to cause the harm suffered by the claimant. **Claimant has to prove relationship is proximit and foreseeable and fair to put that liability. In this test** Different methods of establishing a duty of care - Is there an existing statutory duty that determines whether a duty of care is owed? - Is there analogous judicial precedent that suggests a duty of care should be imposed (or not imposed) through the incremental categories? - Is there sufficient evidence to prove that the defendant has assumed responsibility over the claimant? - Are the circumstances such that the three elements of the Caparo tripartite test can be satisfied? - As amended by *Robinson v Chief Constable of West Yorkshire* \[2018\] UKSC 4 **Summary** - The UK system is based on corrective justice with underlying elements of distributive justice - Finding negligence is the predominant essence of tort law; though there are some specific rules around particular torts - Reasonableness and equality between fault and liability in the way cases are decided - Case law is an important tool in governing this - There are different ways of establishing a duty of care