The law of tort introduction a. What is a Tort?

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  assault
  
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  false imprisonment
  
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  trespass
  
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  conversion
  
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  defamation of character
  
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  negligence
  
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  nuisance.
  

In order for an act to be a tort there must be 3 elements:

1. 
   wrongful behaviour, i.e. by intentional wrongdoing or negligent conduct (exceptions to this is behaviour where the defendant is liable without fault – these are torts of STRICT LIABILITY);
   

2. 
   the wrongful behaviour must infringe another human being’s interest which the law regards as being worthy of protection. Some interests, such as security of the person and property, are considered so important that they receive protection against both intentional and negligent infringement; and
   

3. 
   the Claimant is entitled to obtain compensation from the defendants in the form of damages by taking action in a civil court.
   

It is the compensatory function of the Law of Tort which distinguishes it from criminal law, which exists to satisfy the public interest in the suppression of crime.

2. 
   Action in Tort
   

The reason for taking action in tort is to obtain COMPENSATION. If legal rights have been infringed the Claimant can sue for compensation. The RIGHTS are the key not the INJURY because there is no automatic right to compensation if the Claimant has suffered injury, a right must have been infringed. There are certain rights which the law takes so seriously that if they are infringed an action can be brought without showing any injury.

2. 
   Types of Injury
   

Injury, except for cases of strict liability, is usually present in tortious behaviour and there are protections at law.

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  Interests in land are well protected by the law of tort, whether against deliberate intrusions (trespass), careless damage (negligence) or interference with the Claimants rights to enjoy the land (nusisance);
  

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  interests in other forms of property are less well protected. Deliberate taking of tangible property is caught by the tort of conversion, careless damage by the tort of negligence;
  

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  interests in the person. Plaintiffs are protected from deliberate injury by the torts of assault and battery, from careless injury by the tort of negligence and many other dangers by the tort of breach of statutory duty;
  

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  economic interests are not well protected by tort law and the protection that exists is against deliberate or negligent harm;
  

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  reputation is protect by tort through “defamation”.
  

2. 
   Basic Concepts
   

1. 
   Negligence
   

Much of tort law is concerned with the variations on the tort of negligence. The tort of negligence covers a very wide variety of situations and is therefore uneven. In general if a Claimant wishes to establish negligence against a defendant he must demonstrate:

1. 
   that the defendant owed him/her a duty of care;
   
2. 
   that the defendant broke the duty of care; and
   
3. 
   that the breach of duty caused loss to the Claimant.
   

1. 
   Duty
   

The most famous statement about duty was made by Lord Atkin in Donoghue V Stevenson [1932] AC 562, 580. In this case the Claimant (Mrs Donoghue) was trying to show that the defendant (Mr Stevenson), a manufacturer of a soft drink, owed her a duty to make the drink reasonably safe. The drink had been bought for her by a friend in a restaurant. On pouring out the drink she was overcome by the dreadful smell and it was discovered that there was a decaying snail in it. Mrs Donoghue claimed she became ill as a result of the experience. It was found that a duty of care did exist and Lord Atkin made the following statement

forsee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be – 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 into question”.

2. 
   Liability for others
   

Usually the defendant is responsible only for his/her own actions and not for what others do, however through the doctrine of vicarious liability the defendant can be responsible for the wrongdoing of others

3. 
   Breach of duty
   

If a duty is established then it must be proved that the defendant had broken it. What must be examined is the reasonableness of the defendant’s behaviour in the particular circumstances. It is for the Claimant to prove that the defendant broke the duty of care and the standard of proof is on the balance of probabilities.

2. 
   Tort and Statute
   

Many statutes modify tort liability, whether by expanding or contracting it. There are three main ways in which the infringement of a statute may result in an action in tort

(i) torts where it is necessary to show that the defendant’s conduct was unlawful and breach of statute may apply; (ii) there is a distinct tort of breach of statutory duty and (iii) a statutory duty may form part of a case that the defendant was under a duty in the tort of negligence to look after the Claimants interests. These torts are all distict from one another.

2. 
   HARM TO THE PERSON
   

1. 
   Assault and Battery
   

If a defendant deliberately inflicts force on a Claimant, the defendant has committed the tort of battery, unless the defendant has a defence. To threaten immediate force constitutes the tort of assault. Both torts are actionable without proof that any financial loss resulted from the defendant’s activities. The distinction between the torts is clear in theory but it is really not important, in practice it is common to refer to instances of assault and battery as “assault”.

Mineworkers were bused into work passing through pickets who were making violent gestures and threats. Held: this could not be assault as there was no way in which the pickets could reach those in the bus.

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  Horn threw a bucket of boiling water over Pursell (Pursell v Horn [18388 Ad&El 602)
  

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  Reeve deliberately drove his gig at a carriage which overturned. Hopper who was inside was hurt (Hopper v Reeve [1817] 7 Taunt 698)
  

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  Burford hit dodwell’s horse which bolted and threw Dodwell (Dodwell v Burford [1670] 1 Mod 29)
  

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  Fagan accidentally drove his car onto a policeman’s foot. He then refused to reverse and switched the engine off held Fagan was guilty of assault on a constable contrary to the Police Act 1964 (Fagan v Metropolitan police Commissioner [1969] 1 QB 439)