1) Introduction Many eminent lawyers have defined a tort, and the one most often quoted is that propounded by Professor P. H. Winfield as “A tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages. ’ To obtain a better understanding of the definition, it is preferential to compare a tort with other wrongs. 1. 1) Tort and Crime The distinction between a tort (which is a civil wrong) and a crime (which is a criminal wrong) is the nature of the remedy provided by the law.
Criminal wrongs primarily have punishment as their aim. In contrast, the objective of proceedings in tort are; compensation and reparation. It should be remembered that in some instances an action may be both a civil and a criminal ‘wrong, e. g. assault, theft, libel, etc. Although a tort is a civil wrong, not all civil wrongs are torts. The essential feature of a tort is that its remedy is primarily an action for the unliquidated damages—although there are often alternative remedies available. 1. 2) Tort and Contract The distinction between tort and contract is that the duties of the parties in the former are primarily fixed by the law, whereas in the latter, they are fixed by the parties themselves. Furthermore, in tort, the duty is towards persons generally, whereas in contract, it is towards a specific person or persons.
1. 3) Types of Tort There are a range of Torts which may be committed and the range includes negligence, defamation, nuisance, trespass of the person and land. 1. 4) Function and Purpose of Tort The law of tort is concerned with those situations where the conduct of one party causes or threatens harm to the interests of other parties. The aim of this law is to compensate for the harm suffered by those whose interests have been invaded by the conduct of others. 3 2)
Tort of Negligence 2. 1) Definition ‘The tort of negligence protects individuals from harm from others unintentional but careless conduct. As a general rule, all persons are under a duty to conduct themselves in all their activities so as to not create an unreasonable risk of harm or injury to others. Persons who do not exercise due care in their conduct will be liable for negligence if the following elements can be proven by the injured party: 1. The wrongdoer owed a duty to the injured party often known as the legal duty of ordinary care.
2. The duty of care owed to the injured party was breached through some act or omission (failure to act) on the part of the wrongdoer. 3. There is a causal connection between the wrongdoer’s negligent conduct and the resulting harm to the injured party. 4. The injured party suffered actual harm or damage recognized as actionable by law as a result of the negligent conduct. Broadly defined, negligence is conduct-an act or omission (failure to act) – by an individual that results in harm to another to whom the individual owes a duty of care.
In contrast to an intentional tort, the injurious consequences of an individual’s conduct are neither intended nor desired by the individual. If the individual’s conduct creates an unreasonable risk of harm to others, such conduct may be termed unintentional tort since there was no intent by the individual to harm another. For example, the person who intentionally runs over another while driving a car has committed the intentional tort of negligence. However, a person who unintentionally runs over another while driving unreasonably or carelessly has committed the unintentional tort of negligence. 2. 2) Elements of the tort ofnegligence The plaintiff has to prove the following elements to win his case on the grounds of negligence.
2. 2. 1) Duty of care In the eyes of the law, you owe a duty of care to a person whenever you should have realised as a reasonable person that carelessness on your part (either a careless act or a careless failure to act) could result in injury to that person. English law mentions the “neighbour-test”, stating that you have a duty of care to your neighbour and that your 4 neighbour is anyone whom you should have realized you could hurt by your careless actions or careless failures to act. 2. 2.
2)Breach of duty of care “The reasonable person standard” In determining whether a person’s conduct is negligent, the law generally applies an objective standard of reasonableness. The standard is usually stated as “ordinary care” or “due care”, as measured against the conduct of a hypothetical – the reasonable person. If you do not act as “reasonable person”, you are found to be negligent. The reasonable person represents a standard of how typical persons in the community ought to behave. If the person is a skilled professional, such as a doctor, attorney or business executive the standard is that of a reasonably skilled, competent and experienced person who is a qualified member of the group authorized to engage in that profession.
In determining whether an individual’s conduct was negligent, the question is “What would a reasonable person have done under the same or similar circumstances? ” If the person’s conduct was not that of a reasonable person in the eyes of the court, the person has failed the reasonableness test and has therefore acted in a negligent manner. It should be noted that the reasonable person standard is a theoretical concept created in law. It describes a person who acts in a reasonable manner under the given circumstances.
The standard, however it is not always easy to live up to. Although the law does not require perfection, errors in judgment must be reasonable or excusable under the circumstances or negligence will be found. To determine if a breach of duty has occurred, the court may also use a cost-benefit analysis. The court will use this analysis to determine if the person being sued acted like a reasonable person under the circumstances. The cost-benefit analysis: 1. Likelihood and seriousness of injury: Was it likely that if a person behaved in a certain way injury would occur, if so would the injury probably have been serious or minor? 2. Cost and ease of instituting precautions to eliminate or reduce the risk:
How expensive would it have been to prevent or reduce the risk of injury? How easy or difficult would it be to reduce or eliminate the risk of injury? 3. Social need for the product or service: Does society need this product or service? The court will add up these three issues to see if breach of duty has occurred. For example, let us examine a railway system. 1. Likelihood and seriousness of injury: It is likely that, if guard rails are not put 5 on station platforms to prevent people from falling or jumping on the tracks, sooner or later someone will fall or jump. The seriousness of injury could be great, including death.
However, probably few will be injured that way. 2. Cost and ease of preventing or reducing injury: It would be very expensive for the railway to put guard rails on every platform and difficult to do so. 3. Social need for the product or service: Society needs the service provided by railways. The court will then add up these three issues. The court may decide that the cost of adding guard rails might result in the bankruptcy of the rail way system or of a drastic increase in fares. Balancing the need of society for the railway against the likelihood of many harms meaning guard rails are not necessary.
The court will state that a reasonable person (a reasonable railway) could not be expected to go so far as to place guard rails on platforms. 2. 2. 3 Causation The most basic element of the tort of negligence is a causal connection between the act or omission of a person and another’s injury. For a person to have caused an injury to another and be held negligent, that person’s acts must have been the cause in fact and the proximate cause of the other’s injury. 2. 2. 3. A) Cause in fact Cause in fact is established by evidence showing that a person’s conduct is the cause of an event because the event would not have occurred without it.
Courts express this in the form of a rule commonly referred to as the “but for’ rule. That is, the person’s injury would not have occurred but for the conduct of the wrongdoer. For example, a hotel’s failure to install a proper fire escape is not the cause in fact of the death of a person who suffocated in bed from the smoke while sleeping. The person would have died regardless of whether the hotel had properly installed a fire escape. 2. 2. 3. B)Proximate cause The injured party must prove that the person’s act or omission was not only the cause in fact of the injury but also the proximate cause of the injury.
Proximate cause is a judicially imposed limitation on an individual’s liability for the consequences of his or her negligence. The person’s liability is limited to consequences that bear some reasonable relationship to the negligent conduct. Consequences that are too remote or too far removed from the negligent conduct will not result in liability. 6 Underlying this notion is the idea that the person’s act may set off a chain of events and injuries that were not foreseeable. The “Palsgraf’ case is a landmark decision for its discussion and application of the concept of proximate cause. Palsgraf Case Palsgraf v.
Long Island Railroad Company, Court of Appeals of New York, 248 N. Y. 339, 162 N. E. 99 (1928) Casebackground: The plaintiff; Helen Palsgraf, was waiting on a platform to catch a train to Rockaway Beach. As she stood there, another train stopped at the station. As the other train began leaving the station, a man carrying a package ran to catch it. He jumped on the train but then appeared to begin to fall from the train. One of the guards on the train was holding the door open for the man. He reached forward to help the falling man while another guard, who was standing on the platform pushed the falling man from behind.
As the man regained his balance, the package he was holding fell from his arms onto the rails. The package contained fireworks. ‘When the package fell, the fireworks exploded. The shock from the explosion caused some scales that were located on the other end of the platform to fall, striking the plaintiff: ? The plaintiff sued the railroad company for the negligence of its employees during this event. ? The jury found in favor of the plaintiff and the appellate division affirmed the jury’s decision. ? The defendant then appealed to a higher court, the Court of Appeals of New York. Casedecision
Negligence is not actionable unless it involves the invasion of a legally protected interest or the violation of a right. Negligence is the absence of care, according to the circumstances in this case. The plaintiff as she stood upon the platform of the station might claim to be protected against intentional harm. Such invasion is not charged (in the present case). She may claim to be protected against unintentional harm as the behaviour of a reasonable man should not lead to a hazard from which harm would ensue. In relation to the plaintiff, this act can be seen as innocent and harmless through ordinary
vigilance. The outcome could have never been anticipated by the perpetrators whilst carrying out a simple act to help another. In every instance, before negligence can be established for a given act, the act must apply and there must be a duty to the complainant, the obeisance of which would have averted or avoided the injury. 7 The ideas of negligence and duty are strictly correlative. A different conclusion will involve us in a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite.
To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trodden on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise which a porter has left upon the walk? The distant passenger, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary.
His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed. In this case, the rights that are said to have been violated, the interests said to have been invaded, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which may very well be doubted, it was a wrong to a property, which threatened injury to nothing else. There has passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security.
The diversity of interests emphasizes the futility of the effort to build the plaintiffs right upon the basis of a wrong to someone else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground.
The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before provision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform. The argument for the plaintiff is built upon the shifting meanings of such words as “wrong’ and ‘wrongful” and shares their instability. What the plaintiff must show is a wrong to herself i. e. , a violation of her own right, and not merely a wrong to someone else, nor conduct wrongful because unsociable, but not a wrong to anyone.
The range of reasonable apprehension is at times a question for the court and at times, if varying inferences are possible, a question for the jury. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiffs safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent. Negligence, like risk, is thus a term of relation.
Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the 8 violation of a right. In this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person.
If the harm was not willful, be must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Case holding: The judgments of the trial court and the appellate division were reversed. Plaintiff lost the case. The railroad was not negligent because the injury was not foreseeable. Case questions: 1. If the guard had purposefully and with intent caused the fireworks to be discharged, would this case have ended differently? 2. For the plaintiff to recover, what is the court requiring that she demonstrate?
3. Why did the plaintiff sue the railroad company? Could she have made a better case against the owner of the fireworks? Intervening conduct One important problem with determining proximate cause is the difficulties posed by intervening conduct. If the causal connection between a person’s act and the resulting harm to another is broken by an intervening act or event, such an act or event is called a superseding cause. Most likely, liability will still rest with the wrongdoer if the intervening act was foreseeable or was a direct result of the wrongdoer’s negligent or careless conduct.
However, if the causal relationship between the defendant’s act and resulting harm is in fact broken by the intervening act (the intervening act was unforeseeable under the circumstances), the defendant will likely not be liable in negligence. Suppose for example that LEM, Inc negligently leaves a ditch intended for a utility hookup uncovered and the ditch crosses a public sidewalk. If Washburn intentionally shoves Daft into the ditch, LEM is not liable to Daft for its negligence. Washburn’s conduct is a superseding cause of the injury to Daft that relieves LEM of liability. 9 2. 2. 4) Actionable (allowable) injury.
Personal injury is always actionable (i. e. you can sue the alleged causer of injury based on injury to your person and possibly win, if you can prove the other 3 elements and if the alleged causer of injury cannot claim a winning defense. ) Examples of personal injury are injury to your body or mind. Property damage can be sued for unless the property damage occurred to a defective or negligently made product. Economic injury is only recoverable in certain situations. Some countries, notably the U. S give damage awards for pain and suffering and for mental anguish, among other things. 3) DEFENSES TO A NEGLIGENCE ACTION.
Although an injured party has established all the required elements of negligence, the party may nevertheless be denied compensation if the wrongdoer establishes a valid defense. As a general rule, any defense to an intentional tort is also available in a negligence action. In addition, several other defenses are available to defendants in negligence actions, including assumption of the risk, and contributory negligence. 3. 1) Assumption of the risk An injured party who has voluntarily assumed the risk of harm arising from the negligent or reckless conduct of another will generally not recover compensation for such harm.
Such a voluntary decision by the injured party is called assumption of the risk and creates a defense for the wrongdoer. The basic requirements of this defense are: – that the injured party knew or should have known of the risk and – that he voluntarily assumed that risk. Thus, athletic participants, such as football players, are said to assume the risk of son-ic injuries on the field. Similarly, spectators at sporting events such as baseball games assume the risk for injuries that result from the usual playing of the game and the reaction of the crowd. Assumption of the risk is an affirmative defense.
It must be specifically raised by the defendant to take advantage of it. When established, assumption of the risk usually bars the plaintiff from any recovery even if the defendant was negligent. 10 3. 2) Contributory negligence (UK version) This same doctrine is called ‘comparative negligence” in the U. S. Under contributory negligence, the defendant argues that the plaintiff was also careless, did not use due care, and that the injury to the plaintiff was caused, at least in part, by the plaintiffs own carelessness. If the defendant succeeds in proving this defense, the plaintiff s damages are reduced by the percentage of the injuries caused by the plaintiff’s own negligence.
Suppose that Shirley runs over Glenn with her automobile while Glenn is crossing a street. Suppose also that Glenn himself contributed to his injuries by carelessly not looking around him before crossing the street. As a result, Glenn sustains 10,000 English pounds in injuries and sues Shirley. If the court determines that Shirley’s negligence contributed 80% to Glenn’s injuries and Glenn’s negligence contributed 20 percent, the court would award Glenn only ?
8,000. However, if the injured party’s degree of negligence is equal to or greater than that of the wrongdoer, i. e. .50% or more, the court will allow no recovery. The “Brooks” case, provides valuable insight into the factors to be considered in determining the relative faults of the parties: Baton Rouge Case Brooks V. City of Baton Rouge, Court of Appeal of Louisiana, First Circuit, 558 So. 2d 1177 (1990) Case background Mrs. Brooks, the plaintiff was operating her automobile in a southerly direction on O’Neal Lane in Baton Rouge. At the same time, Mrs.
Ferrara was operating her automobile in a northerly direction on O’Neal Lane. For some unknown reason, the right wheels of the Brooks car drifted off the roadway for approximately six inches before Mrs Brooks instinctively oversteered her car to get it back onto the road. In the attempt to get it back onto the road, Mrs. Brooks lost control, crossed the center line of the highway, and was broadsided by the Ferrara car. Mrs. Brooks dies as a result of this accident. O’Neal Lane had been recently repaved. Work on the shoulder of the road had been done by city employees. In constructing the shoulder at the site of the accident, a size 57 limestone aggregate was used.
The experts called in to testify during the case agreed that a size 610 was the better aggregate for shoulder surfacing because of the compaction ability. On that basis, Mrs. Brooks’ estate (her family) sued the City of Baton Rouge (the defendant) for negligence in the construction of the shoulder of the highway. Applying the comparative negligence doctrine (known as contributory negligence in the UK), the trial court found Mrs. Brooks 15% at fault and the defendant 85% at fault for their respective contributions to the accident.
The defendant appealed this division of fault, 11 asserting that the negligence of Mrs. Brooks accounted for more than 15% of the causation of the accident. Case decision The Louisiana Supreme Court has indicated which factors would be considered in order to apportion fault under a system of comparative fault: “The trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. ” In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: 1. whether the conduct resulted from inadvertence of involved and awareness of the danger, 2. how great a risk was created by the conduct;
3. the significance of what was sought by the conduct; 4. the capacity of the extenuating circumstances which might require the actor to proceed in haste without proper thought. And of course the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties. Mrs. Brooks committed two acts of negligence: her inattention which caused her to leave the road, and her improper attempt to regain the road before reducing speed. She should have perceived the great risk of attempting to re-enter the road at speed.
There was no need for her to proceed in such a hasty fashion. The road was straight and there were no obstructions in Mrs. Brook’s path which required her to return immediately to the paved portion of the roadway. The accident occurred during the day and therefore visibility was not limited as it might have been at night. There was no evidence of any emergency situation requiring her to proceed with haste and without proper thought. She travelled the road daily and therefore was very familiar with the road. The only factor tending to lessen her percentage of fault is the fact that her conduct was described as inadvertent or
instinctive. On the other hand, the City constructed the shoulder with a no. 57 limestone aggregate rather than the normally used no. 610, resulting in a less stable shoulder. This shoulder contained a 3 and 1/2 inch drop which the trial court concluded was defective. The no 57 limestone, was used for approximately 40 feet along the shoulder. Case holding Under the facts and circumstances of this case, the court concluded that the trial court was eroneous in finding that Mrs Brooks was only 15% at fault. The trial court should have allocated to Mrs Brooks 50% of the fault. Plaintiff argues that in Le Blanc v.
State (1982), when faced with a similar instinctive reaction, the court said: 12 “the natural instinct of an ordinary driver, without prior warning or specific training, is to attempt to regain immediate entry onto the highway, thereby creating a risk of loss of control. Because a substantial percentage, if not a majority of ordinary drivers encountering an unexpected 4 to 6 inch descent upon inadvertently deviating slightly from the road would react instinctively as Mrs. Le Blanc did, the legal duty of the state to maintain safe highway shoulders is imposed to protect against the risk.
’ However, we note that in Pitre V. Aetna Insurance Co. (1984), though the driver traveled 300 feet on the shoulder of the road before striking a bridge guardrail, the Louisiana Supreme Court said: “Prudent behavior for a motorist who inadvertently drives off the paved roadway onto the shoulder is first to reduce speed and then to attempt a gradual reentry after he has regained control of the vehicle” Plaintiffs would suggest that “Pitre” is distinguishable because the driver traveled on the shoulder for some distance before striking the guardrail.
But the Louisiana Supreme Court said that the first thing an inadvertent driver who goes off the paved roadway is to do is reduce speed not instinctively jerk the steering wheel to bring the car back on the highway. Lloyd sc Grace, Smith & Co. (1912): A solicitor was held liable where one of his staff gave fraudulent advice to a client of the firm, despite the solicitor’s claim that giving fraudulent advice could not be regarded as part of the course of employment. This is an example of the employer being held responsible for the intentional tort of an employee.
Apparently the court decided that the employee could not have given the fraudulent advice if he was not employed by the employer, that, but for the opportunity provided by the employer, he could not have defrauded people and that, while appearing to the public to be acting in the course of his employment, he defrauded the public. However, in Ricketts V. Tilling (1915): a bus company was held not liable for the negligent driving of a bus conductor who had temporarily taken over the wheel since this was not what he was employed to do. Limpus v. LGOC (1862):
The master is vicariously liable if the servant is doing improperly what he is employed to do properly, even if the master has expressly forbidden the particular wrongful act. Thus a bus company was held liable for an accident caused by bus drivers racing to bus stops despite the fact that the company had expressly prohibited such racing. Rose v Plenty: A dairy company was liable when a passenger in a milk delivery truck was injured through the driver’s negligence, even though giving lifts was expressly prohibited. 13 4) STRICT LIABILITY IN TORT 4. 1) Strict liability Strict liability is often defined as liability without fault. That is, the plaintiff can recover compensation for loss or damage without having to prove negligence (i. e. carelessness) or
intent on the part of the defendant. This doctrine was established in the early English case Rylands v Fletcher (1868): Case Rylands v. Fletcher (1898) Case background A mill owner engaged competent contractors to construct a reservoir on his land to provide water for his mill. In the course of their work the contractors came across disused mine shafts which appeared to be blocked by earth. These old mine shafts in fact connected with a neighbor’s coal mine. So when the reservoir was filled up the water escaped and flooded the coal mine.
At the time, the case did not fit into any of the conventional tort liability theories, since the defendant was free of negligence and did not intentionally injure his neighbor’s property. The court therefore introduced the concept of strict liability, emphasizing the abnormal or non-natural character of the activity that caused the harm. Case holding The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and. if he does not do so, is answerable for all the damage which is the natural consequence of its escape. The defendant must be making a non-natural use of his land.
Today, courts draw on Rylands and other cases and impose strict liability for harms resulting from the undertaking of extraordinarily and exceptionally dangerous or inappropriate activities. Activities such as blasting with dynamite, storing or using dangerous substances, keeping dangerous animals, have all been held to be sufficiently dangerous to justify strict liability. More recently, in the U. S. , the tort of strict liability for abnormally dangerous activities has been applied in ‘toxic tort” cases, those cases involving persons injured by exposure to toxic or hazardous substances. Elements plaintiff must prove:
1. Abnormally dangerous activity or situation exists that is under the control of the defendant. 2. As a result of the abnormally dangerous activity, the plaintiff has suffered allowable injury. 14 No need to prove carelessness. For example, if Wesayso Ltd. is using dynamite to blast a path for a new road and a bystander is injured, Wesayso is strictly liable for those injuries, even if it was not negligent.
4. 2) STRICT PRODUCT LIABILITY Prior to passage by the European Community of a directive mandating that all EC countries incorporate the doctrine of strict product liability into their own national laws, most of the EC countries did not have such a doctrine in their national tort laws. Therefore, prior to passage of this directive, in most EC countries, persons injured by defective products could only base their suit on negligence. Strict product liability under the Consumer Protection Act (UK) On 25 July 1985, the EC Council of Ministers adopted a directive on strict product liability, based on the U. S. strict product liability doctrine and, consequently, the British government and all the other governments of the EC member states were committed to implementing changes to their national laws to bring their national tort laws into line with the EC directive within three years.
The UK implemented the EC directive in Part I of