Manchester Metropolitan University Business School Economics and Law Law Lecture Handout 9 Tort
Manchester Metropolitan University Business School Economics and Law Law Lecture Handout 9 Tort
Manchester Metropolitan University Business School Economics and Law Law Lecture Handout 9 Tort
TORT
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1. What is Tort?
Tort law contains the rules which determine how people should behave within society
in their everyday conduct.
Types of Torts
• Trespass
• Torts of intentional interference with the person ( Battery, Assault, False
Imprisonment, Harassment).
• Negligence
Elements of Negligence
Carelessness is a key concept (BUT careless behaviour alone is not enough to trigger
the tort of negligence). The other significant elements in establishing negligence are
duty of care, breach of duty, causation and damage. Negligence is also based on the
standard of the defendant’s conduct rather than the type of conduct.
Held: (House of Lords) The manufacturer was liable in negligence to the claimant.
The requirements to prove negligence successfully were
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The case also gave rise to two rules:
The “neighbour” test used by Lord Atkin in Donoghue v Stevenson has been further
expanded upon in subsequent cases.
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concerned with health and safety issues) would be relied on for
financial purposes by the occupier of the building.
4. Breach of Duty
Once a duty of care has been established the claimant must show that the defendant
was in breach of his duty of care.
The question to ask is: “has the defendant behaved as a reasonable man would have
behaved?” (It is an objective question, and NOT a subjective question).
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PARIS v STEPNEY BOROUGH COUNCIL [1951]
Held: The risk (to a one eyed welder) of working without safety goggles
(i.e. total blindeness) was much greater than to fully sighted worker
(partial loss of sight).
Claimant can plead Res ipsa loquitur where the “thing” that caused the injury was
under the defendant’s control, and the incident would not normally have happened
without negligence on the defendant’s part.
Causation in fact
This is based on the “but for” principle. This simply means that when trying to hold
establish liability of the defendant we need to look at whether the breach actually
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caused the damage to the claimant- “but for” the breach, the damage would NOT
have occurred.
Held: Although the defendant had breached its duty of care (by failing to provide
adequate staff cover in its casualty department), the breach did NOT cause
the death- medical evidence was produced to show that no treatment
would have saved the victim’s life as there was NO effective antidote for
arsenic.
Held: Defendant could ONLY be liable for the effects of the first disability, and
NOT for the later loss of the leg, which was a result of being shot during a
hold-up.
Defendant’s liability for the first injury was, however, for the lifetime
effect of the first disability.
Defendant could NOT have his liability limited because of the intervening
act.
• The test for remoteness in negligence used to be that laid down in:
RE POLEMIS [1921]
Facts: A dockworker employed by the defendant negligently dropped a plank
into the hold of the claimant’s ship. The metal on the plank struck the side
of the ship’s hold, which cause a spark and ignited the gas that had
collected in the bottom of the hold. An explosion occurred, causing a fire
that destroyed the ship.
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Held: Defendant was liable (vicariously) for the negligence of the workman who
dropped the plank for all the direct consequences of the action whether
reasonably foreseeable or not (dropped plank caused the loss of the whole
ship).
N.B: This test in Re Polemis [1921] still applies to deliberate torts such as deceit
(fraudulent misrepresentation).
• The more modern test for remoteness is the one laid down in:
Held: Defendant was NOT liable in negligence because the damage caused was
NOT a reasonably foreseeable consequence of the breach of duty.
Held: Defendant was liable even though the cause of the injury was unusual
because injury by normal burning would have been foreseeable, i.e. the
precise nature of the injury suffered need not be foreseeable as long as it
was one of a kind that was foreseeable.
Held: The cancer was NOT too remote a consequence of the burn. Claimant
allowed to rely on the “egg-shell skull” rule- where the victim has some
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unusual characteristic that renders him more vulnerable than others then
that vulnerability is protected by the law.
6. Remedies
The main form of remedy for negligence in tort is damages. The aim is to compensate
the injured party for the loss suffered (to put the claimant back in his original position
so far as money is able to do this.
Injuries to the person present more difficulties because many things must be
considered in attempting to arrive at an assessment of loss e.g. pain and suffering, loss
of ability to pursue previous activities of interests, loss of actual and prospective
earnings, and medical expenses.
7. Defences
a) Statutory authority
Nothing authorized by statute is unlawful. If the statute gives an individual or
an institution the authority to do something then doing that thing cannot be
unlawful.
This is subject, only to the proviso that any act authorized by a statute will be
carried out with reasonable care. This effectively means that statutory
authority will rarely be a defence for negligence.
If a person consents to suffer damage or run the risk of it, he cannot later
bring an action. The risk may be assumed by express agreement e.g.
consenting to an operation, or may be implied from the circumstances e.g.
participating in a vigorous game.
Held: Defendant allowed to plead the defence of volenti (consent). It was highly
foreseeable that such a flight would end in disaster. Therefore, by getting
on the flight the claimant consented to the risk of injury.
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There are some situations where Consent cannot be used as a defence.
1. It is NOT sufficient to show that the claimant merely knew of the risk- there must
be evidence of a willing consent to undergo it. In employer- worker relationships,
for example, the courts have demanded evidence of positive consent as opposed
to mere acquisence.
2. The defence will also fail in ‘rescue’ cases where the claimant acted under a
strong moral compulsion, if not a legal one.
c) Contributory negligence
This arises when the damage suffered is partly the fault of the defendant and
partly the fault of the claimant. The defendant, therefore, attempts to reduce
the damages by proving that the claimant himself was partly responsible. The
Law Reform (Contributory Negligence) Act 1945 provides that in such cases
the court shall reduce the damages by an amount proportionate to the
claimant’s share of responsibility.
Held: She had contributed to the risk of her own injury to the extent of 25%.
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Held: The claimants were 80% contributorily negligent, and therefore their
damages were reduced by 80%.
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Seminar Questions
1. Sarah purchased a bottle of soft drink in her local restaurant. After drinking all of
it, she found a dead mouse at the bottom of the bottle. She immediately told the
restaurant manager, who recorded the incident and has agreed to be a witness if
Sarah sues the manufacturer of the soft drink. That evening Sarah had an upset
stomach and had to into hospital for a few days.
She now wants to sue the soft drink manufacturer for negligence in tort. Advise
Sarah on how to proceed.
3. Roofers Ltd manufactures roofing sheets that are used for the roofs of houses. The
roofing sheets are manufactured at its chemical plant in Northeast England, using
‘asbestos’, which is known to be a poisonous material.
Phil has worked for Roofers Ltd in their chemical plant for the last 19 years, and
has recently found out that he has asbestos-related illnesses.
Mary and Paul bought roofing sheets from Roofers Ltd a few years ago to use for
the roof of their house. They have recently found out that Paul has an asbestos-
related illness.
Matt is a burglar who broke into Mary and Paul’s house last year. He got into their
house through the roof. Matt has been recently informed by his doctor that he has
an asbestos-related illness.
Phil, Mary, Paul and Matt all wish to sue Roofers Ltd, but Roofers Ltd is arguing
that it did not owe any duty of care to any of them. Advise Phil, Mary, Paul and
Matt on how to demonstrate that Roofers Ltd owed them a duty of care.
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