Manchester Metropolitan University Business School

Economics and Law

Law Lecture Handout 9

TORT

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1. What is Tort?

A tort is a wrong. It comes from a French word which means “wrong”.

Tort determines situations of liability which are characterized by the violation of a

prohibition to harm another.

Tort law contains the rules which determine how people should behave within society
in their everyday conduct.

The Difference between Tort Law and Contract Law

Although Contract law is based on a single underlying legal principle, Tort law is
NOT based on any single, unifying principle.

Types of Torts
• Trespass
• Torts of intentional interference with the person ( Battery, Assault, False
Imprisonment, Harassment).
• Negligence

2. The Tort of 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.

DONOGHUE v STEVENSON [1932]

Facts: Claimant purchased a bottle of ginger beer in a café and drank half of it. When
the claimant poured the remaining half into her glass the remains of a
decomposed snail floated out. The claimant became ill with gastro-enteritis
and nervous shock and sued the manufacturer of the ginger beer for
negligence.

Held: (House of Lords) The manufacturer was liable in negligence to the claimant.
The requirements to prove negligence successfully were

1. Duty of care owed by the defendant to the claimant

2. Breach of that duty by the defendant
3. Causing consequential loss or damage to the claimant.

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The case also gave rise to two rules:

1. The Narrow Rule: manufacturer owes a duty of care to the consumer

2. The Wide Rule: general definition for when a duty of care will be owed by one
person to another. It is also know as the “neighbour” principle. “The rule that you
are to love your neighbour becomes in law the rule that you must NOT injure your
neighbour” (per Lord Atkin).

3. The Duty of Care

The “neighbour” test used by Lord Atkin in Donoghue v Stevenson has been further
expanded upon in subsequent cases.

MURPHY v BRENTWOOD DC [1990]

Facts: Claimant’s newly built house subsided when the concrete raft on which it
was built turned out to be inadequate. As a result the house was worth
£35,000 less than it would have been if the subsidence had not occurred.
The claimant sued the Local Authority for his pure economic loss (the
£35,000) as it had employed the surveyor who had failed to notice the
inadequacies in the concrete raft when it was put in place.

Held: A duty of care in negligence arises where:

1. It is foreseeable to the defendant that negligence on his part will cause
injury, damage or loss to the plaintiff, AND
2. There is a relationship of sufficient proximity between the parties,
AND
3. It would be just and equitable to impose liability on the defendant.

Some common examples of where a duty of care would exist include:

1. Driver of a vehicle: would owe a duty of care to pedestrians, his/her passengers,
and other drivers.
2. Owner of a chemical plant: would owe a duty of care to employees working on
the plant, anyone living close to the plant or visiting the plant, and anyone using
the products manufactured at the plant.

MURPHY v BRENTWOOD DC [1991]

Facts: See above.

Held: The house was defective, NOT dangerous. No personal injuries

had been caused to any person by its defects and no damage to
property, therefore NO consequential loss.

Insufficient proximity between the parties, as it was NOT

reasonably foreseeable to the local authority that its statutory
obligations in respect of building regulations (which were

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 concerned with health and safety issues) would be relied on for
financial purposes by the occupier of the building.

It was NOT just and equitable, in the circumstances, to burden

taxpayers with the homeowner’s financial losses in such
circumstances.

N.B: If a surveyor’s failure (or act) causes actual physical loss or

damage then he will be liable (including for parasitic economic
loss), BUT if his failure causes ONLY pure economic loss then he
will NOT be liable in tort.

If a surveyor makes a negligent misstatement then he will be liable

in negligence ONLY if the conditions laid down in Hedley Byrne v
Heller are satisfied.

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.

a) The Reasonable Man test

The test used to determine whether or not the defendant was in breach of his duty of
care is the “reasonable man” test.

BLYTHE v BIRMINGHAM WATERWORKS CO [1856]

“Negligence is the omission to do something which a reasonable man guided upon
those considerations which ordinarily regulate the conduct of human affairs would do,
or doing something which a prudent and reasonable man would not do” (per
Alderson).

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).

b) Factors to be taken into account in determining whether a breach has

occurred:
1. The degree of probability that damage will be done
BOLTON v STONE [1951]
Held: Because a cricket ball had gone over the boundary fence less than
ten times in fifty years the degree of probability very low and therefore
defendant was NOT liable for failing to build an extra high fence.

2. The magnitude of the likely harm

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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).

3. The importance of the objective to be attained

WATT v HERTFORDSHIRE CC [1954]
Held: The need to get speedily, even when carrying special lifting gear,
to seriously injured road accident victims outweighed the duty to ensure
that the lifting gear was properly secured to protect the safety of firemen
traveling in the van with the equipment.

4. The burden of taking precautions against the risk in not taking

precautions
LATIMER v AEC [1953]
Held: The cost of making a factory floor completely safe after a flood
had left its surface slippery (i.e. the closure of the factory) was excessive
compared with the cost of making the floor almost completely safe (i.e
spreading sawdust thickly across the whole surface, bar the small patch
where the claimant had slipped and was injured).

5. Whether the defendant claims to have a special skill

BOLAM v FRIERN HOSPITAL MANAGEMENT COMMITTEE
[1957]
Held: Where a person exercises a particular specialist skill or calling then
his conduct will be measured by reference to a reasonable practitioner of
that skill or calling (surveyor, solicitor, accountant, plumber).

c) Proving the Breach

The burden of proof is on the claimant to show that there has been a breach by the
defendant of his duties. (Needs to show this ‘on the balance of probabilities)

Res ipsa loquitur (the incident speaks for itself)

If claimant can show this then the burden of proof is transferred from the claimant
to the defendant (defendant will then have to show how he was NOT negligent).

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.

5. Causation (the Breach must cause the damage)

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.

BARNETT v CHELSEA & KENSINGTON HOSPITAL MANAGEMENT

COMMITTEE [1969]
Facts: A night watchman was poisoned by arsenic (in his tea) while at work. He
went to the casualty department of the defendant hospital to seek medical
help. The casualty department was closed because of staff shortage,
therefore no medical help was available. He went home, and died shortly
after. His widow sued the defendant hospital for negligence.

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.

BAKER v WILLOUGHBY [1970]

Facts: Claimant’s leg was injured at work as a result of the defendant’s
negligence. He was then put on light work, during which he was shot in
the same leg and as a result had to have that leg amputated.

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.

Causation in law: Remoteness

The important question to ask here is: “is the damage too remote to be compensated
for in law?”

• 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:

THE WAGON MOUND [1961]

Facts: Defendant negligently spilled large quantities of fuel oil into Sydney
Harbour. Oil spread over the surface of the water to the claimant’s wharf
where two ships were being repaired involving welding operations. Expert
advice had been given to the wharf-owners that sparks from welding could
not ignite the oil. In fact sparks from the welding did ignite the oil. The
resulting fire damaged the claimant’s wharf and vessels berthed there.

Held: Defendant was NOT liable in negligence because the damage caused was
NOT a reasonably foreseeable consequence of the breach of duty.

• The kind of damage suffered will also have a bearing on whether or

not the breach caused the damage:

HUGHES v LORD ADVOCATE [1963]

Facts: Claimant was burned by an unusual explosion of a paraffin lamp left
negligently by the defendant’s employees alongside an uncovered
manhole.

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.

• “Egg-shell skull” principle (the defendant must take his victim as he

finds him:

SMITH v LEECH BRAIN [1962]

Facts: Claimant’s husband suffered a burn on his lip from a splash of molten
metal (as a result of his employer’s negligence). He died from cancer that
developed from the burn (medical evidence showed a pre-disposition to
cancer).

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.

b) Consent (Volenti non fit injuria)

It means voluntary assumption of risk. It is an absolute defence because once
established the defendant escapes from all liability.

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.

MORRIS v MURRAY [1990]

Facts: Claimant agreed to take a flight in a small plane flown by its owner (under
the supervision of the defendant). All three of them had been drinking very
heavily but nevertheless the claimant agreed to go on the flight. The plane
crashed, killing the pilot (owner) and severely injuring the claimant.
Claimant then sued defendant for negligence.

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.

SMITH v BAKER [1891]

Facts: Claimant was injured by a falling stone when he worked under an
overhead crane. He had not objected to working under the crane, even
though he must have known that it was dangerous.

Held: His silence was merely acquiescence, NOT necessarily consent.

2. The defence will also fail in ‘rescue’ cases where the claimant acted under a
strong moral compulsion, if not a legal one.

3. Consent cannot be a defence to an action for breach of a statutory duty. An

employer cannot, therefore, persuade his workmen to consent to abandoning their
statutory protection.

4. The defence of consent may be excluded by statute on grounds of public policy.

An example of this is the Road Traffic Act 1998, which prevents a car driver
from relying upon the defence of consent against a passenger who has suffered
injury by reason of his negligent driving.

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.

SAYERS v HARLOW UDC [1958]

Facts: Claimant became locked inside a public lavatory because of defendant’s
negligence in failing to maintain the door lock. After failing to attract
attention or assistance she attempted to climb out over the top of the door,
and in doing so fell and was injured.

Held: She had contributed to the risk of her own injury to the extent of 25%.

STAPLEY v GYPSUM MINES [1953]

Facts: Claimants were two miners who, in breach of instructions given to them
by their employer, worked beneath a dangerous roof, and were injured
when the roof collapsed on them.

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Held: The claimants were 80% contributorily negligent, and therefore their
damages were reduced by 80%.

FROOM v BUTCHER [1976]

Facts: Claimant was a passenger in defendant’s car. Claimant failed to wear his
seatbelt.

Held: Claimant’s failure to wear a seatbelt was contributory negligence. The

appropriate reduction in damages was 25% if the seatbelt would have
prevented the injury altogether or 15% if it had merely reduced the extent
of the injury. Since it was concluded that seatbelt would have prevented
the injury altogether the claimant therefore had his damages reduced by
25%.

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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.

2. Explain the ‘wide rule’ in Tort.

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.

4. What is the ‘test’ used for establishing a Breach of Duty?

5. What are the defences to a claim of negligence?

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