LAW OF TORT 1

LLB 1008
UNIT 1: OVERVIEW OF THE LAW OF
TORT, AND

UNIT 2: INTRODUCTION TO THE TORT OF

NEGLIGENCE

Prepared by Dawn McNeil

Faculty of Law
University of Technology, Jamaica
 Definition of Tort
• Technical Legal meaning: It is a civil wrong for which the
law provides a remedy.

• Tort embraces several areas of law, such as,

(a) Negligence
(b) Trespass
(c) Nuisance
(d) Liability to animals
(e) Trespass to person: assault & Battery, false
imprisonment
 Definition of Tort Cont’d

(f) Employer’s liability

(g) Product liability
(h) Vicarious liability
(i) Defamation/torts affecting reputation
Distinction Between Tort & Contract
Contract Tort
• Duties imposed by • Obligations fixed by
law. Note that parties parties based on
may well contract to agreement. But terms
vary the duties that are sometimes
the law imposes. imposed by law, often
to protect consumers.
Distinction Between Tort & Contract
Cont’d
Contract Tort
Parties are aware of • Parties are not aware
their legal obligation of their legal
before the breach of obligation before the
contract occurs. breach of contract
occurs eg. Motor
vehicle accident
Distinction Between Tort & Contract
Cont’d
Contract Tort
• Damages in contract • Damages in tort
relates directly to the relates to the
terms of the contract, proximity of the
implied or expressed. relationship and how
• Focus is on omissions remote the claim is to
to do what is the wrong alleged to
promised have been committed
than the omission to
do a particular thing.
Distinction Between Tort & Contract
Cont’d
Contract Tort
• Aims to enforce • Aims at deterring
promises made and behaviours that can
deter breaches of cause harm to
promise. another, resulting in
injury.
Distinction Between Tort & Contract
Cont’d
Contract Tort
• Based on mutual • Does not rely on any
promises. promises made but a
wrong committed by one
party to a contract, where
one party performs the
contract negligently, can
result in an action either
in tort or contract e.g.
doctor or attorney-at- law
• No need to prove fault • Frequently necessary to
prove fault.
Distinction Between Tort & Contract
Cont’d
Contract Tort
• Obligations limited to • Damages may be greater
the express or implied in tort as there is likely to
terms under the be wider obligations
imposed by the duty in
contract. tort.
• Development of the
principle of
promissory estoppel
may imply that the
gap between the two
areas of law is
narrowing.
Distinction Between Tort & Contract
Cont’d
Contract Tort
• It is almost unnecessary • Aim is to compensate for
to prove fault in cases of wrongs suffered as a
contract for a person to result of the fault of
be compensated for another person.
breach of contract Damages based on the
establishment of fault.
The party must be
blamed for the injury
sustained. It is to be
noted that there need be
no fault I strict liability
cases.
Distinction Between Tort & Contract
Cont’d
Contract Tort
• Contract • In cases of product
compensates for the liability cases tort is
quality of the goods concerned with
e.g. if they are compensated for
merchantable or not. unsafe products.
 Contract V. Tort
• Tort aims to restore the party to the position he
was in before he suffered injury and will do so by
compensation in money terms.

• Tort compensates tangible and intangible losses:

loss of amenities, pain and suffering, nervous
shock. This implies that damages is
“unliquidated”, that is the claimant does not claim
a fixed amount of compensation
 Contract V. Tort
• The award of damages in contract is to place the
claimant in the position he/she would be in if the
contract had been performed, that is,
“liquidated”.
• That is contract deals with loss of expectation
and tort with restoring the status quo.
• Where money is not an adequate remedy then
equitable remedies may be given in appropriate
circumstances.
 Overview of the Law of Tort
• Viewed from two main perspectives

1. Nature of the duties imposed,

and

2. Interest protected by this area of

civil law.
 Overview of the Law of Tort
Cont’d
Interest protected:
• Personal interest in property such as land
(nuisance, trespass)
• Persons from intentional interference
(assault, battery, false imprisonment)
• Persons reputation (libel, slander,
malicious prosecution, injurious falsehood)
• Financial interest (economic and trading
interest)
 Over Overview of the Law of Tort
Cont’d
• Evolution of this branch of law is
continuing based on economic and social
changes in society.
• The tort of negligence was “officially
recognised in England in 1932” as a
separate tort.
• The vast majority of tort claims are now for
negligence.
 Overview of the Law of Tort
Cont’d
• Not every wrongful act amounts to a tort for which the
law provides a remedy.
Bradford Corp v Pickles [1895] AC 587

The defendant prevented underground water

from flowing to the claimant’s land because he
wanted to force them to buy the land at an
inflated price. The House of Lords held that a landowner
was entitled to take water from his lands even if his
neighbour’s land is deprived of water. This represent a
wrong without a remedy.
 Overview of the Law of Tort
Cont’d
• The decision in Bradford Corp v Pickles affirmed
in the case of Arscott v The Coal Authority where
it was considered not to be in violation of the
European Convention of Human Rights
• In some cases there is no damage but a tort has
been committed e.g. trespass to land. The mere
walking on the land amounts to trespass, there
need be no damage to property.
 Overview of the Law of Tort
Cont’d
• Tort is primarily common law and has
developed by the decisions of judges in
response to social and economic
conditions.
• The case of Donoghue v Stevenson
(1932) AC 562 established the
manufacturer’s common law liability to the
final consumer.
 Overview of the Law of Tort
Cont’d
• Tort and strict liability
There are some torts that do not require
the proof of fault to be actionable. It is
only required that there is proof that the
defendant committed the act and there
was some damage as a result of the act
complained of by the claimant.
 Overview of the Law of Tort
Cont’d
• Tort and strict liability cont’d
Strict liability has been imposed in a number of
circumstances:
1. Liability for stray animals straying onto
another’s land
2. Liability for defective products under the
Consumer Protection Act
3. Liability for dangerous animals
4. Liability under the rule in Ryland v Fletcher
Subject to defences and exceptions
 The Objectives of Tort
[Link]: Provides a means to
compensate victims of injury and loss by
assessing and awarding damages.

[Link] interests: Protects a person’s

interest in land and other property.
 The Objectives of Tort Cont’d
3. Deterrence: Encourage persons to be
careful in the conduct of their activities and
to be mindful of other persons and their
property. There is growth in business
such as insurance, in an effort to manage
risks. Insurance companies reduce
premium as an incentive when there are
fewer accident claims.
 The Objectives of Tort Cont’d
4. Retribution: Element of retribution where
the claimant seemingly gets the
satisfaction of bringing action against the
defendants for the wrongful act.
A significant number of cases are settled,
especially where there is insurance
coverage to assist the defendant in
settling his liability.
 The Objectives of Tort Cont’d
5. Vindication: Public vindication of the
innocence of the party who is not at fault
or not liable for any wrongful act.
6. Loss distribution: Tort treated as a
vehicle for distributing losses between
the parties. Criticism of the systems as
some feel that attorneys-at-law get too
much from the award or settlement.
 The Objectives of Tort Cont’d
7. Punishment of wrongful act/or moral
justification: Punishment is usually
associated with the criminal law but there
is some satisfaction in ensuring that the
wrongdoer pay the victim
 Introduction to the Tort of
Negligence
• Negligence is said to be a recent tort.
• Several criteria need to be satisfied to
establish a successful claim in negligence
• Simply negligence has been classified as
involving a duty, a breach of such duty and
the resultant damage caused by that
breach.
 Introduction to the Tort of
Negligence Cont’d
• R. W.M. Dias stated that in determining
the questions of liability the following
questions can be considered:
1. Is the careless infliction, by act or
omission, of this kind harm, on this type
of plaintiff by this type of defendant
recognised by law as remediable?
 Introduction to the Tort of
Negligence Cont’d
2. Was the defendant’s conduct in the
given situation careless, i.e. did it fall
short of the standard, and come within
the scope, set by the law?
3. Was it reasonably foreseeable that the
defendant’s carelessness would have
inflicted on this plaintiff the kind of harm
of which he complains?
 Introduction to the Tort of
Negligence Cont’d
4 Was it the defendant’s conduct that
caused the plaintiff’s damage?

If the answer is yes in these instances

then the defendant is liable for
negligence.
 Introduction to the Tort of
Negligence Cont’d
Arising from the foregoing questions are the
following elements:
1. Foreseeability
2. Duty of care
3. Breach of duty
4. Causation and remoteness of damage
 Introduction to the Tort of
Negligence Cont’d
• The first question is whether a duty of care
is owed.
• Lord Atkin in Donoghue v Stevenson
enunciated the broad principle which
became known as the “neighbour
principle”
 Introduction to the Tort of
Negligence Cont’d
The question in the case was whether a
“manufacturer of a bottle of drink sold by him
to a distributor in circumstances which
prevent the distributor or the ultimate
purchaser or consumer from discovering by
inspection any defect is under a legal duty to
the ultimate purchaser or consumer to take
reasonable care that the article is free form defect
likely to cause injury to health”. (Hepple et al; Tort
Cases & Materials)
 Introduction to the Tort of
Negligence Cont’d
“The liability for negligence,…is no doubt
based upon a general public sentiment of
moral wrongdoing for which the offender
must pay. But acts or omissions which
any moral code would censure cannot in
practical world be treated so as to give a
right to every person injured by them to
demand relief. In this way rules of law
arise which limit the range of complainants
and the extent of their remedy”.
 Introduction to the Tort of
Negligence Cont’d
“the rule that you are to love your neighbour
becomes in law: you must not injure your
neighbour, and the lawyers’ question: who is
my neighbour? Receives a restricted reply.
You must take reasonable care to avoid acts
or omissions which you can reasonably
foresee would be likely to injure your
neighbour. Who the in law is my neighbour?”
 Introduction to the Tort of
Negligence Cont’d
“ The answer seems to be the persons who
are so 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 in question”.
(Donoghue v Stevenson)
 Introduction to the Tort of
Negligence Cont’d
• This brings into focus the issue of
proximate cause, remoteness of damage
and the measure or extent of damages to
be awarded to a successful plaintiff or
claimant.