TORT LAW

AN INTRODUCTION TO TORT

Tort law determines who bears the loss which result from defendant action based on the following principles

a) Compensation
b) Fault
c) Retributive justice (punishment)
d) Deterence
e) Economic efficiency (market deterence)
f) Loss distribution (spreading losses in a socially fair way)

Interest Protected by Tort

Tort laws aims to protect individaul from actual or threatened harm to certain specific interests such as

a) Personal harm
b) Harm to property
c) Harm to reputation
d) Harm to financial interests
e) Harm to the due process of law - Martin v Watsone D maliciously made a groundless accusation on indecent exposure against the plaintiff.

The Role of Tort in the law of obligations


Its mixed aims are the inevitable result of common law system where law is develoed on a case-by-case bases. Although compensation is the most common reason for bringing a tort action, claimant may have a number of other reasons including deterence and retribution. In Hill v Chief Constable of West Yorkshire for example, the mother of the last visito of Peter Sutchliffe (a serial killer) sued the police for negligence for their carelessness in apprehending the killer and to point out the need to improve the practice. In Lord Templeman's view the action was misconceived pointing out that "an action for damages for alleges acts of negligence by individual police officers in 1980 could not determine whether and in what respects the West Yorkshore police force can improve in 1988.

INTERESTS PROTECTED BY TORT

Tort law aims to protect the individual from actual or threatened hardm to certain specific interest interest such as:

a) Personal Harm: - Tort law responded to the the threats to the safety of individual brought about by industrial revolution. This supplemented the existing protection provided by trespass to the person, where the torts of assault, battery and false imprisonment serve to protect indvidual fron intentional interference with their personal freedom and bodily intergrity.

b) Harm to property - protection against property remain important. Personal property is protected by the torts of trespass to goods and conversion (civil theft). Real property is protected by a number of torts including trespass to land nuisance and the rule in Rylands v Fletcher,


c) Harm to reputation -
In practice the distinction between contract law and tort is by asking that Have the rule of contract law been complied with? If the answer is no, the obligation or wrong in question cannot be classified as contractual, but may be classified as tortius. There are other compensation system that are often used rather than tort such as the Criminal Injuries Compensation Scheme. These other scheme are use in consideration of the cost, time, risk, difficulty associated with the implementation of tort law. This is also in addition to the absence of litigation consciousness of a greater majority of people.

There are various proposals for reform which include a mixture of tort law and social security, no fault-liability, insurance



TORT OF NEGLIGENCE - DUTY OF CARE

Lord Atkin's 'Neighbour Principle' in Danoghue v Stevenson formulated a general principle for determining the existing of duty of care in the following instances; where the defendant owes a duty to the victim, where the defendend neglected in the performance of that duty and where the negligence resulted in harm or injury to the victim.

Thereafter Lord Wilberfoce set out a 'two stage test' These are

Stage 1: Is there between the claimant and the defendant, a sufficient relationship of 'proximity' or 'neighbourhood' such that the defendant can reasonably foresee that carelessness on his or her part would be likely to cause damage to the claimant? if the answer to this question is affirmative, then a prima facie duty of care arises.

Stage 2: Are there other considerations which should nevertheless lead the court to deny duty of care, or to limit its scope, in these particular circumstance?

The test was later abandoned because on interpretation it did no truly reflect the ways the courts decided the existence of duty of care. This is because of the difficulty for judges to avoid explicit reference to political and economical consideration when answering the 2nd question in the two way test.


The modern approach to duty of care was espoused by the House of Lords in Capara v Dickman and the creteria were:

1) The damage must be forceable

2) There must be a sufficiently proximate relationship between the parties.

3) It must be 'fair, just and reasonable' for the court to impose a duty of care in the light of policy consideration which the court is concerned.

The main feature of Caparo are forceability (what a reasonable person in the circumstance of the defendant ought to have forseen (objective test); foreseeable claimant (someone who is closely and directly affected by defendant's conduct Bourhill v Young); proximity (closeness of relationship between the defendant ant the claimant); fair, just and reasonable (policy concern are relevant to the degree of proximity - this enables to court to determine liability on the basis of policy. In applying thge caparo criteria, it is necessary to determine the type of harm the claimant has suffered i.e.

a) Whether the damage is question is caused by a positive act )misfeasance), or by an omission (non-feasance);

b) the type of defendant being sued.


MISFEASANCE AND NON-FEASANCE

Lord Atkin in Donoghue v Stevenson spoke of a duty of care arising in respect of 'acts or omissions' yet as Lord Goff notes in Smith va Littlewoods Organisation Ltd '.... the common law does not impose liability for what are called pure omissions.' The laws draws a distinction between a positive act which causes harm (misfeasance) and a mere failure to prevent harm from arising (non-feasance. In Curman v Northern Ireland Housing Association Lord Bridge pointed out that duties to prevent harm being caused (as opposed to duties to refrain from causing harm) would normally only arise whre one person, under a contract, had promised to make another person better off and that it may not be appropriate for such duties to be imposed in tort. Similar reasoning was employed by the House of Lords in Sutradhar v Natural Environment Research Council. Misfeasance or non-feasance depends essentially on the nature of the relationship between claimant and defendant. In English law in contrast to civil law jurisdictions, there is no general duty to rescue another (unless there a prior relationship of care has existed between the defendant and person who needs rescuing); and there is no general duty to prevent others people from causing damage. There are four particular situations as mentioned below where liability for the acts of third parties can arise:

a) Special relationship betweeen the defendant and the claimant - Where D assumed responsibility to look after the claimant's property (Stanbie v Troman)contractual relationship when the plaintiff employed a decorator who left the premises unsecured.

b) Special relationship between the defendant and the third party - In (Home Office v Dorset Yacht) the defendant were liable because they have control over the third party who caused the damage.


c) Special relationship betweeen the defendant and the claimant - Where D assumed responsibility to look after the claimant's property (Stanbie v Troman)contractual relationship when the plaintiff employed a decorator who left the premises unsecured.

d) Special relationship between the defendant and the third party - In (Home Office v Dorset Yacht) the defendant were liable because they have control over the third party who caused the damage.