LAW OF TORT

Definition of tort.

A tort can be defined as ‘a civil wrong’, against an individual or a body corporate which may
consist of either a wrongful act or omission which has not been authorised by law. The basis of
liability in a tort is that no person has a right to injure another or cause damage to his property.

The person who commits the tort is called the ‘tortfeasor’. When a tort is committed, the victim
who suffers has two main remedies available i.e. damages for the harm suffered or an
injunction to prevent future harm. The predominant remedy is damages.

In tort, the aim of the award of damages is to restore the plaintiff in a position that he would
have been had the tort not taken place. In contract, the aim of the award of damages is to put
the injured party in a position that he would have been had the contract been completed or
performed.

Negligence

Winfield and Jolowicz on Torts defined negligence to mean ‘The breach of a legal duty to take
care which results in damage, undesired by the defendants, to the plaintiff.

In order to win a negligence case, the plaintiff (the person injured) must prove the following four
elements to show that the defendant (the person allegedly at fault) acted negligently:

1. Duty - The defendant owed a legal duty to the plaintiff under the circumstances;

2. Breach - The defendant breached that legal duty by acting or failing to act in a certain way;

3. Causation - It was the defendant's actions (or inaction) that actually caused the plaintiff's
injury; and

4. Damages - The plaintiff was harmed or injured as a result of the defendant's actions

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Duty of care
1st Element: Duty of Care - D owed to P a duty of care

a. The burden is on the plaintiff (P) to prove that the defendant (D) owed him a duty of care.

b. The main test to establish duty of care is the ‘neighbour’ principle in Donohue v Stevenson.

Donohue v Stevenson (1932)

A man bought from a retailer a bottle of ginger-beer manufactured by the defendant. The
man gave the bottle to his lady friend who became ill from drinking the contents. The bottle
contained the decomposed remains of a snail. The bottle was opague so that the noxious
substance could not have been seen and was not discovered until the lady was refilling the
glass. The consumer sued the manufacturer in negligence.

The court held that the manufacturer was liable to the consumer in negligence.

In the case of Donohue v Stevenson – Lord Atkin formulated the neighbourhood test i.e.
‘there was a duty to take reasonable care not to injure one’s neighbour’.

The summary is as follows:

i. The test for the existence of a duty owed to the plaintiff is the neighbour principle as
stated by Lord Atkin in Donoghue v Stevenson i.e. the foresight of the reasonable man.

Lord Atkin: ‘You must take reasonable care to avoid acts and omission which you could
reasonably foresee would be likely to injure your neighbour’. (Therefore duty of care is
‘a duty to take reasonable care not to injure your neighbour)

Who then in law is my neighbor?

The answer : ‘Persons who are closely and directly affected by my acts that I ought
reasonably to have them in contemplation (to have them in my mind) as being so
affected by my act when I am directing my mind to the acts or omission which are called
in questioned’ – is my neighbour.

The case of Caparo Industries plc v Dickman (1990) redefined the definition of duty of care
to include 3 elements that is:
a. Foreseeability of damage,
b. Proximity of relationship, and
c. fair, just and reasonable to impose liability.

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There are recognised categories of relationship which give rise to a duty of care automatically:

• driver/passenger
• driver/road users
• manufacturer /consumer
• lawyer/client
• landlord/tenant
• victim/rescuer
• prison authority/prisoner

For other cases which have not been categorized, the test for determining duty of care must be
applied.

2nd Element: Breach of Duty of Care

Once P has established that D owed him a duty of care, the next step is whether P can prove
that D has breach that duty of care. The main test used by the courts is the ‘reasonable
man’s test.

Standard of care – the reasonable man’s test.

The test to prove breach of duty of care is the ‘reasonable man’s test’ (objective test)
i.e. by asking, “Would a reasonable man in the same circumstances as the defendant
foresee that the plaintiff would be adversely affected by the acts or omission by the
defendant?” The Blyth v Birmingham Waterworks Co

If the answer is yes, then a duty of care is breached.

Who is a reasonable man? A reasonable man has been describe as ‘the man on the
omnibus’ or ‘the man on the street’ – meaning an ordinary man who is not expected to have
any particular or special skill such as those possessed by doctors, surgeon, lawyers,
engineers, accountant etc.

Possession of special skills

Where D is exercising special skills or belongs to a specific profession, then he must be
judged by what a reasonable person possessing similar skill would do in the same situation
or of a reasonable member in that profession. The reasonable man’s test will not be
applicable in this case. (See Professional Negligence)

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Factors to be considered in deciding breach of duty of care
a) State of knowledge.
Would a reasonable man in a similar circumstance as the defendant have foreseen that his
actions would cause the plaintiff to suffer damage or injury?

The answer is, reasonable foresight of a consequence is determined by the knowledge and
experience of a reasonable man in a given circumstance or situation.

In the case of Roe v Minister of Health, the court held that the standard of care is to be
judged based on the knowledge available at the time of the breach.

Roe v Minister of Health (1954)

Roe was left paralysed after surgery in 1947. This was due to some disinfectant that had
leaked into the glass ampoules which contaminated the anesthetic. The disinfectant was
used to disinfect the ampoules and had leak through microscopic cracks in the ampoules
which were invisible to the naked eye. It was held that the doctor was not negligent
because the risk of microscopic cracks was not known until 1951. Thus the standard of care
must be based in the light of medical knowledge that was reasonably possessed in 1947.

b) The magnitude of the risk

What is the likelihood of injury? What is the probability of injury occurring? The

higher the likelihood of injury, the higher is the standard of care required.

In Bolton v Stone, the claimant who was standing outside her house, in a quiet street, was
hit by a cricket ball from a nearby cricket ground. It was clear that the cricketer could have
foreseen that the ball could be hit out of the ground because in the past 30 years, this had
happened 6 times. The cricket ground had a 17 foot fence and there was quite a distance
from the pitch to the edge of the ground.

The court held that the chances of injury to someone standing where the claimant was so
slight that the cricket club was not negligent in allowing cricket to be played.

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 c) The seriousness of the injury

The greater the seriousness of the injury or the more vulnerable is P, the higher is the
standard of care required to be exercise by the other party e.g. if P suffers from some form
of disability that is or should have been known to D, this will increase the seriousness of the
risk of harm to him. Such disability is a factor to be taken into account.

Thus, the young or old, or persons who are sick or handicapped, are vulnerable and may be
more prone to serious injury. A higher degree of care is imposed in such cases.

Paris v. Stepney Borough Council.

D a Local Authority employed C as a garage mechanic. C had lost the sight of one eye
during the war. In order to loosen a stiff bolt he struck it with a hammer; a piece of
metal flew off and (because he was not wearing goggles) struck him in his good eye,
causing him to become totally blind.

Held: The probability of such an event was very small, but its consequences were very
serious, his employers, knowing of his disability, should have taken extra care to provide
goggles for him. The more serious the possible damage, the greater the precautions that
should be taken

d) Importance of the object to be attained.

Where the purpose or object to be attained is sufficiently justified by the taking of the risk, the
defendant will not be liable.

Watt v Hertfordshire County Council [1954] 1 WLR 835

The claimant was a fireman. A woman had been involved in a traffic accident and was trapped
underneath a lorry. This was 200-300 yards away from the fire station. The fire services were
called to release the woman. They needed to transport a heavy lorry jack to the scene of the
accident. The jack could not go on the fire engine and the normal vehicle for carrying the jack was
not available.

The fire chief ordered the claimant and other firemen to lift the jack on to the back of a truck.
There was no means for securing the jack on the truck and the firemen were instructed to hold it
on the short journey. In the event the truck braked and the jack fell onto the claimant's leg
causing severe injuries

The court found that the benefit of saving the woman trapped in the accident was greater than
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the risk of injuring the fire fighters (claimant) by using an unsuitable truck for carrying the
equipment.
e) The practicality of precautions or measures taken to eliminate the risk.

The risk must be balanced against the practicality of the measures taken to eliminate such
risk.
It is not always reasonable to expect that all possible precaution against risk have been
taken. The measures taken to eliminate risk must be weighed against the reasonableness of
the defendant’s conduct.

Latimer v AEC Ltd

D owned a factory that became flooded after a heavy rain. The flood water was mixed with
a heavy coolant and this left the factory floor with slippery patches. Despite the defendant
using sawdust to cover the floors and taking other precautions, certain parts of the factory
floor remained untreated. The claimant, who works in the factory, was injured when he
slipped on an uncovered area and he sued.

The court held that the defendant had done all that is necessary to prevent any risk to the
employees and that the slippery patches were clearly visible. The factory was held not
liable.

f) Res ipsa loquitor

‘Res Ipsa loquitor’ means ‘the event speaks for itself’. This is a legal concept that allows the
court to infer that an accident was caused by the negligence of a party without actual proof
of that negligence.

Scott v London and St. Katherine Docks & Co. (1965).

In this case, six sacks of sugar fell from a crane onto the plaintiff as he was entering the
defendant’s warehouse. The court held that although the defendant did not give evidence
to enable the court to know exactly how the accident happened, nevertheless the court
could infer that there must have been a lack of reasonable care. This is because six sacks of
sugar do not fall out of a hoist unless someone had carelessly stowed them on the hoist or
had carelessly operated the hoist.

The test to apply the maxim of res ipsa loquitor is:

1. The accident must be of a kind that occurs due to a breach of a duty of care.
2. The defendant must have had sole control over the situation which caused the
accident.
3. The defendant had no plausible or alternative explanation of what caused the
accident to occur.

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 CAUSATION
3rd Element: P suffered loss or damage which was caused by D’s breach of duty of care.

Did the defendant cause the loss or damage to P?

P must prove that D’s breach caused the loss or damage. In order to decide this issue, one
of the test used by judges to arrive at a decision is the ‘but for’ test. This test was used in
the case of:

Barnett v Chelsea Kensington Hospital Management.

A man went to the defendant hospital to get medical treatment for nausea after having a
cup of tea at work. The nurse on duty called the doctor in charge who refused to examine
the man. He simply advised the man that he should go home and consult a doctor if he still
felt unwell. The man died about five hours later of arsenic poisoning. The hospital was sued
for negligence.

Held: The court accepted that the hospital owed the man a duty of care and that they had
breached that duty by failing to examine him. But the court also held that the hospital was
not liable because the breach was not the caused his death. There was evidence to show
that even if he was examined, it would be too late for any treatment to save him. Thus, it
could not be said that but for the hospital’s negligence he would not have died.
BUT FOR TEST

BUT FOR THE ACTION, would the incident occur?

If the answer is yes, then the action caused the incident.

The test simply asks, "but for the existence of X, would Y have occurred?" If the answer is
yes, then factor X is an actual cause of result Y.

"But for" defendant speeding, the car would not have gone out of control, and therefore the
defendant is responsible.

Eggshell Skull Rule

Sometimes a Defendant’s(D) conduct results in a much more severe damage to the Plaintiff (P) than
is reasonably anticipated. The D cannot argue that the P’s injury would be less if the P did not have
an usually thin skull or a weak heart, and this principle is commonly known as the eggshell skull
principle.

Smith v Leech-Brain & Co Ltd Due to the D’s negligence, the P’s husband was burned on the lip by a
piece of molten metal. The P’s husband in fact had a tendency to contract cancer and the burn
caused a cancerous growth from which he died 3 years later. The court held that D was liable, even
though an ordinary healthy person would not have developed cancer in the same circumstances.
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 Remoteness of damages
4th element : loss or damage must not be too remote as a consequence of the breach.
The loss or damage caused by D must not be too remote.

The question of remoteness of damage is concerned with whether P can recover damages
for his loss. P can recover damages for his loss if he succeeds in proving that D caused the
loss or damage.

The breach of duty must be the primary or main cause of the damage in order for P to
succeed in a claim for damages. Damages would be considered to be too remote if a
reasonable man would not have foreseen them.

The test for remoteness is the ‘Reasonable Forseeability Test’.

In the Wagon Mound case (see below), the court held that a party can only be held liable
for damage that was reasonably foreseeable.

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd – “The Wagon
Mound” [1961] AC 388

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• Caparo Industries v Dickman & Ors.

D, were auditors who acted for a public limited company, prepared the company’s annual
report which showed that the company was financially sound. P, relying on this report
bought share of the company and later mounted a successful takeover of the company.
The accounts were in fact inaccurate. P sued D for negligence but the court held that D was
not liable.
The principles derived from this case are:

i. The auditor of a public company owes no duty of care to a member of the public or
even to an individual shareholder who relies on the audited accounts to make an
investment decision. If a duty of care is imposed this would make the relationship
of proximity to wide and will give rise to unlimited liability on the auditors.

ii. There are three (3) criteria for the imposition of duty of care

• Foreseeability of damage,
• Proximity of relationship, and
• Reasonableness of imposing a duty.

• A relationship of proximity can exist if the maker of the statement knows that his
statement will be communicated to the plaintiff.

• Proximity would be established if the statement is made in connection to a

particular transaction and

• The identified plaintiff is likely to rely on the statement for the purpose of deciding
whether to enter into that transaction.

• A duty of care is not present as the imposition of duty of care will make the
relationship of proximity too wide

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Defences to negligence.

i. Volenti Non Fit Injuria

This doctrine holds that a person who knowingly and willingly puts himself in a
dangerous situation cannot later on sue for any resulting injuries. There must be
voluntary consent with full knowledge of the risk by the plaintiff.

ICI v Shatwell (1965) AC 656

Two experienced shot firers were working in a quarry. The law imposed a duty on them
to ensure that all persons nearby must take cover before making a test. They knew that
their electrical wires for the test were to short but decided to make the test without
taking cover themselves before doing so. There was a premature explosion and both
were injured. They sued the employer for negligence.

The court held that the plaintiffs had consented to the risk. D was not liable as they had
not been negligent not did they allowed the law to be breached over safety procedures.
The plaintiffs were trained personnel and were well aware of the safety measures.

ii. Contributory negligence

Section 12 Civil Law Act 1956

Defendant can raise the issue of contributory negligence by proving that Plaintiff had
contributed to some extent to the negligence of Defendant, thereby resulting in the
damage suffered by Plaintiff.

If D succeeds in doing so, then the damage awarded to P will be apportioned or

reduced accordingly.

Jones v Lavox Quarries Ltd. (1952) 2 QB 608

P disobeyed his employer’s instruction by riding on the back of a traxcavator (a type of
excavator). A fellow worker driving another vehicle negligently hit the back of the
traxcavator and P was injured. It was held that P had also contributed to his own
injuries.

The court further affirmed: Denning LJ, ‘Just as actionable negligence requires the
foreseeability of harm to others, so contributory negligence requires the foreseeability
of harm to oneself. A person is guilty of contributory negligence if he ought reasonably
to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt
himself; and in his reckonings he must take into account the possibility of others being
careless...’

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OTHER DEFENCES

b. Act of God - This is an inevitable accident arising out of the working of natural forces which
is beyond human control and foreseeability. It must be extraordinary and unanticipated. But
if the damage could be related to human negligence, there is no defense of Act of God e.g.
landslides due to heavy rain, but the hill sloped was weaken by human intervention, there
will be not defense of Act of God.

c. Private defence - The right to private defence entitles a person to go to any extent so as to
protect his life, property or a third person. Provided the force used in a private defence
must be reasonable force to repel the attack. Such right should always be exercised in
defence.

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