The Law of Tort

Definition:

Tort can therefore be defined as ‘damage, injury or a wrongful act done wilfully, negligently or in circumstances involving strict liability but not involving breach of contract for which a civil suit can be brought.’

Tortious liability can be defined as a liability that ‘arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages’ (Winfield and Jolowicz).

Examples of Torts

There are several types of tort. The most common is the tort of negligence, and most of this chapter will deal with negligence, including professional negligence. Other types of tort include:

• passing off
• malice
• deceit
• trespass to land
• private nuisance.

The Tort of Deceit

Deceit occurs when one person makes a statement or representation that is false at the time that it is made. For a tort to occur:

• the statement or representation must be made intentionally
• there must be some element of dishonesty in the statement
•  a person to whom the representation is made (the claimant in the case) must have been deceived, and
• the claimant must consequently have suffered loss or damage.

The Tort of Nuisance

Private Nuisance: The tort of private nuisance is an act that wrongfully interferes with a person’s right to the peaceful enjoyment of his land and the rights over his land. 

Public Nuisance: is a criminal offence where action is brought by a public body against the offender. 

Private nuisance is a tort where the legal action is initiated by a private person.

Actions in the tort of nuisance might therefore be brought by the landowner in cases involving noise, odours and soil contamination, as well as physical damage.

Remedies for Tort

The claimant usually seeks damages for the damage or injury caused, although other remedies may be available. The most usual remedy for claimants in tort is unliquidated damages, where the court decides on the amount of damages payable. Other possible remedies consist of:

1. Injunction. The defendant may be given an injunction by the court to cease their unlawful behaviour. Injunction is a common remedy in cases involving ‘passing off’.
2. Abatement. In cases involving the tort of nuisance, the court may order the defendant to reduce the amount of noise or odour that has been causing the nuisance.

• A professional person or skilled workman owes a duty of care to the clients or customers using their services: this is in addition to any contractual duties that he might have.
• A driver of a car on the road owes a duty of care to other road users.

Trespass to Land:

Trespass to land involves one or a combination of the following acts without Lawful justification:

• Entering land that is owned by the claimant.
• Remaining on the land.
• Placing projections onto the land.

People who trespass are liable for their conduct regardless of whether they are intentional or not. This legal doctrine is known as strict liability.

Trespass to the Person:

It consists of any of the following:

Battery: involves the intentional bringing of a material object into contract with another person. It is not just include non- violent acts but can also be restricted to violent acts.

Assault: A clear attempt to do physical harm to someone or to instil dread and anxiety about becoming hurt.

False Imprisonment: involves unlawful arresting, imprisoning or preventing a person from leaving where they are.

Defamation: is the injury to the reputation of a person that is not lawfully justified. Put otherwise, it entails making fun of someone or treating them with disdain.

Deceit: is a wrong whereby the claimant is misled into taking actions that are to his detriment.

The Tort of ‘Passing Off’

‘Passing off’ occurs when one business pretends to its customers that it is someone else, to benefit from the goodwill of the business that it is pretending to be. The tort of ‘passing off’ is linked closely to the law on trademarks, trade names and brand names.

• Trademarks can be registered and protected by the Trade Marks Act 1994, ensuring businesses cannot use another company’s trademarks. The European Community also protects geographical origin designations for products.
• A business can use a non-registered trademark, which is protected by tort law against ‘passing off’ by another business.

Passing off is a misrepresentation by one business to profit from another’s goodwill, causing damage or the likelihood of damage to the other business. 

Claims relating to ‘passing off’: the three elements of ‘passing off’

In most cases of passing off, the claimant has to demonstrate the following, to succeed with the claim.

• There has been a misrepresentation by the defendant.
• This misrepresentation was made by the defendant to its customers or potential customers in the course of its trade.
• The misrepresentation was calculated  to harm the claimant’s reputation or business.
• The misrepresentation did cause damage to the claimant’s business or goodwill or is likely to do so.

The claimant must prove the defendant used their goodwill as their own, using the ‘classic trinity’ of elements in ‘passing off’ and the ‘trinity of confusion leading to deception and damage’.

1. There is goodwill attached to his products or services in the mind of the purchasing public.
2. The defendant has intentionally or unintentionally misrepresented their goods or services, leading customers to believe they are supplied by the claimant.
3. The claimant has (or is likely to) suffer loss as a consequence.

Negligence: The carelessness of an individual or a company that causes physical or financial damage to the claimant. Negligent acts tend to be inadvertent or reckless, but not normally intentional.

The Negligence Tort: THE NEGLIGENCE TORT Negligence is when a person or business acts carelessly and injures the claimant financially or physically. Negligent behaviour is typically unintentional and instead happens accidentally or recklessly. For an action in negligence to succeed, the claimant must prove the following:

• That a duty of care was owed to him by the defendant.
• That defendant violates the obligation.
• As a consequence of that breach, damage or loss has been suffered.

The Need to Establish a Duty of Care

A duty of care does not exist in all situations where one person suffers damage or injury through the action of someone else. As stated earlier, to make a successful claim in the tort of negligence, the claimant must demonstrate three things:

• that the defendant owed him a duty of care existed
• that the defendant was in breach of this duty of care, and
• as a result of this breach of duty, the claimant suffered loss through damage or injury.

The Existence of a Duty of Care

A duty of care of the defendant to the claimant must exist.

• Unless it can be demonstrated that a duty of care exists, a person cannot be held liable for his negligent action and the effect of this action on the other person.
• The burden of proof is with the claimant to establish the existence of a duty of care.

The law on negligence has developed over time, and there are still some uncertainties about when a duty of care exists.

Breach of Duty of Care

A claimant must demonstrate both the existence of a duty of care and the defendant’s breach of that obligation in order for their claim to be successful. The test for establishing breach of duty is an objective one and was set out in Blyth v Birmingham Waterworks Co Co which stated that a breach of duty occurs if the defendant fails to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or does something which a prudent and reasonable man would do. The reasonable man is not expected to be skilled in any particular trade or profession but if he acts in a profession capacity, he must show the care and skill of someone of that profession. The following factors should be considered when deciding if a duty of care has been breached:

Probability of Injury

• It is presumed that a reasonable man takes greater precautions when the risk of injury is high.
• Therefore, when the risk is higher the defendant must do more to meet his duty.

The Seriousness of the Risk

Where the risk to the vulnerable is high, the level of care required is raised.

Particular skill

Persons who hold themselves out to possess a particular skill should be judged on what a reasonable person possessing the same skill would do in the situation rather than that of a reasonable man.

Cost and Practicability

It is not always reasonable to ensure all possible precautions are taken. Where the cost or disruption caused to eliminate the danger far exceeds the risk of it occurring it is likely that defendants will be found not to have breached their duty if they do not implement them.

Common Practice

Where an individual can prove their actions were in line with common practice or custom, they would likely have met their duty of care. This is unless the common practice itself is found to be negligent.

Social Benefit

Where an action is of some benefit to society, defendants may be protected from liability even if their actions create risk. For example, a fire engine that speeds to a major disaster provides a social benefit that may outweigh the greater risk to the public.

Damage or Loss:

This is the third element of a negligence claim. A claim for compensation for negligence will not succeed if damage or loss is not proved.

A person will only be compensated if he has suffered actual loss, injury, damage or harm as a consequence of another’s actions. Examples of such loss may include:

• Personal injury
• Damage to property
• Financial loss which is directly connected to personal injury, for example, loss of earnings
• Pure financial loss is rarely recoverable

Remedies & Defences in negligence:

The common remedies and defences in an action for negligence are:

Remedies

The principal remedy in any case involving negligence will be an award of damages. The damage caused to the claimant must be of a type that is `reasonably foreseeable’. A loss is reasonably foreseeable if a reasonable man would have foreseen the type of injury, loss or damage (Overseas Tankship v Morts Dock and Engineering Co: oil was spilled and accumulated around the claimant’s wharf. Wharf damage resulted from the oil catching fire. The defendants were not liable since, the damage to wharf by oil was foreseeable, damage by fire was not whether the explosion was foreseeable or not)

Defences

There are three main defences to a charge of negligence:

Contributory Negligence:

If the claimant is partly responsible for his own injuries, the defendant can plead the defence of contributory negligence. The court may then reduce any damages it awards to the claimant depending on the degree to which he is judged responsible for his loss (Sayers v Harlow: claimant was injured after using a public toilet while attempting to climb out of the toilet with the support of toilet-roll holder).

Exclusion Clauses:

An exclusion clause is a provision within a contract which seeks to exclude or limit liability for negligence

Professional Negligence:

Professional duties to a client:

• Professional duties are owed to a client in several ways:
• In some cases, a professional owes duties in statute law. For example the directors of a company owe certain general duties to their company under the provisions of the Companies Act 2006.
• There are contractual obligations of a professional to a client in the terms of their contract agreement.
• A professional has obligations to a client in the tort of negligence.

In the law of tort, the term ‘professional’ can be applied to any person who holds himself out as having a particular knowledge, expertise or skill. This includes anyone in the ‘professions’ such as solicitors, accountants and chartered surveyors. Additional scenarios are covered as well, such as banks’ awareness of their clients’ financial matters.

Written by: Mahum Maqbool Bright Student of Mirchawala