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Basic concepts of Torts 1
Basic concepts of Torts
Date Type Reading notes Definition: Tort - Tortum in Latin → Implies twisted conduct → Wrongdoing. Civil wrong between 2 individuals with unliquidated damages containing a breach of duty that is fixed by law. Infringement of Right in rem → (Right in rem - Agaist a thing) Right in rem is available against common/globe as tort is common law and the action for damages in common law action. It justified right to compensation Tort is found in common law and uncodified. Torts should not be codified as this will restrict the power of judges to adjudicate upon these issues and torts is liable to change as there is no set law or definition. Torts do not involve breach of contract or breach of trust. It is a wrong independent of contract for which the appropriate remedy is the common law action for unliquidated damages. The basic principle behind tort law is that no one should be harmed by the act of others. An act in law shall prejudice no man. Liability under tort arises when a wrongful act amounts to violation of legal right. Damage - Harm or loss suffered or presumed to be suffered by a person as a reulst of the wrongul act of another. Damages - Sum of money awarded. Elements of Tort: There must be a wrongful act committed by a person. (DOC and breach of DOC) The wrongful act must give rise to legal damage or actual damage. (Causation) @August 17, 2023
Basic concepts of Torts 2 The wrongful act must be of such a nature so as to give rise to a legal remedy in the form of an action for damages. (Damages) Structural features of Tort: Tort suit is bilateral: only 2 parties Victim centric → State is not a party There is a remedy by compensation Unliquited - Extent of damages depends on the situation Remedying a social problem. Rights:
- Public and Private: Private: Relating to mind, body and property Rights which belong to a particular person against the world. Eg: Right of bodily safety Public: Right vested in a person by a state or authority. Belong to common members of the state generally. Right in personam - Right of the individual against a specific person 2) Actionable per se v. Actionable on proof: Actionable per se: Does not require proof of damages to be actionable. Such a tort is actionable simply because it happened. Eg: Defemation and Trespass. Res Ipsa Locquitur Absolute right Ashby v. White
Basic concepts of Torts 4 There are many different civil wrongs. Pigeon-hole theory: Each labelled tort is a pigeon hole and only if the case fits in one, the case will be considered. Adding more pigeon hole makes the law more dynamic. Pigeon holes themselves are flexible and dynamic. Glanville Williams: Just because law is made of pigeon holes doesn’t mean new pigeon holes cannot be made. Ubi remedium ibi jus: Must fit the writ → If only one principle, then the problem should fit the bill.
Torts and other wrongs:
Case laws- Duty of Care 2 a tumbler where should found the decomposed contents of a snail in it. This cased her alledged shock and gastro entiritis (Inflammation in intenstines and stomach). She was not party to any contract. So, she sued the manufacturer Stevenson. This went to House of Lords. Issue: Whether the manufaturer owed Mrs. Donoghue a duty of care in the absence of contractual relations? Decision: Majority lead by Lord Atkin 3: It overruled the decision in Mullen vs. Barr & Co****. There need not be a contract relationship to establish duty of care. A manufacturer owes a duty of care to the customer who they intend to use their product. Development of neighbourhood principle: A person must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure your neighbour. Who is a neighbour: Peron who are closely and directly affected by the person’s act that the person ought to have in contemplation while carrying the act or omission. Analysis: Established tort as seperate from contract law. Neighbourhood principle- Economic loss: Hedley Byrne v Heller. (2) Between the party who ows the duty of are and the party to whom the duty of care is owed, there exists a relationship categorised by law as ‘proximate’ and ‘neighbour’ and the situation should be as such that the court considers it fair, just and reasonable. Requirements- Forseeable, Proximate and Fairness
3) Home Office v. Dorset Yacht (1970)
Facts:
Case laws- Duty of Care 3 7 boys detained in a borstal were working on an island under the supervision of 3 officers. The boys escaped at night with the plantiff’s yacht and damaged it. The plaintiff sued Home office claiming that they were negligent as they failed to exercise control and supervision over the boys. Issue: Does the home office owe DOC to private persons? Does public policy require that supervisors of such case are immune from liability? Decision: Home Office was held liable. The officers owe DOC as it was reasonable in all circumstances with the view of preventing the persons under their control from causing damagd. Public policy does not require that there should be immnity for these officers.
4) Anns v. Merton LBC (1977): 2 stage test
Facts: The tenants of a flat found that faulty foundations resulted in cracks. So the tenant sued Merton LBC for negligent exercise of its statutory powers by approving foundations and failing to inspect properly. Decision: Lord Wilberforce Merton LBC was held liable for negligence. The cracks were regarded as physical damage and hence actionable. Prima Facie duty of care. (later rejected in Caparo v. Dickman) The neighbour principle is prima facie applicable in all cases if the exclusion is not justified. 2 Stage test for duty of care: Is there sufficient proximity or neighbourhood between the plantiff and defendent where the defendent’s reasonable carelessness might cause damage to plaintiff? Were there any considerations to negate the Duty of Care?
Case laws- Duty of Care 5
5) Caparo v. Dickman (1990) Tripartite test for DOC
Facts: Caparo had brought shares in the company Fidelity based on the result of the audit report prepared by the accountant firm Dickman. It was later found that the profits in the report was misrepresented and the company was in loss. Caparo sued the defendent (accountant firm). Decision: HOL reversed the decision of COA. No duty of care arised in relation to existing shareholders. The only DOC the auditor’s owed was to the governance of the firm. There had to be knowledge that the shareholders would rely on this report in regards to the transaction. The judges noted that the audit report are regularly carried out which differs from reports carried out for specific purposes and for a specific audience. The accountants owed no duty to the entire public who might or might rely on the report. The time the auditors prepared the report, they know that the report is prepared for a specific purpose for specific audience (Morgan Crucible vs Hill Samuel). Caparo’s principles: Harm must be reasonably forseeable as a result of defendent’s conduct. The parties must be in relation of proximity. Must be just, fair and reasonable to impose liability. The court held that the purpose of statutory requirement for an audit of public companies under the companies act was the making of a report to enable shareholders to exercise their classic rights in general meeting. It did not extend to the purpose of information to assist shareholders in the meeting odfdecision as to future investments in the company. The court said that forseeability alone is not the only test of proximity. The practical set od sitation should be analyzed. Relationship must be one where the accountant preparing the accounts was aware of the particular person and purpose for which the report would be used.
Case laws- Duty of Care 6 No duty shall be imposed for an indeterminent amount for an indertermined time and indeterminent class.
6) Sutherland Shire Council v. Heyman (1985): Increamental
approach
Fact: The plantiff bought a house which had bad foundations. The council did not inspect the footings. If they had done it, they would not have approved it. The plantiff sued the council for negligence in approving in approving plans for the erection of the house. Issue: Does the council owe DOC to the owners of the house to ensure it is built to specifications? Held: No breach by the council. Authorities were not immune from common law liability but a public authority not under a statutory obligation to do something will not be held liable for the failure to do so. Failure to act is not negligent unless there is a duty to act. Omissions ar eonly negligent when you were under a duty to act. Statutory power is not same as Statutory duty. The statute must impose a duty. The case held that public authorities could also be held liable for negligence. It further held that the law should develop categories of negligence incrementally with analogy rather than massive extension of prima facie DOC restrained only by indefinite considerations. Increamental approach for DOC: Establishing DOC: Whether the defendent had a responsibility to take reasonable care to prevent damages to the plaintiff → Foreseeability and proximity.
Case laws- Duty of Care 8
2) McLoughlin v. O’ Brian (1983): Foreseeability
Facts: The husband of the claimant and their children were involved in a road accident round 4 pm caused by a lorry driven by Defendent 1 and owned by Defendent 2. The claimant was informed of the accident at around 6 pm by a neighbour who drove her hospital. In the hospital, she learned that her youngest child had died and saw the grievous injuries suffere by her husband and children. This caused her shock resulting in psychatric illness and brought an action for negligence. Issues: In order to recover damages for negligently induced nervous shock, Claimant must demonstrate that she was sufficiently proximate to the event. HOL was to determine the nature and extent of the duty owed by D to persons whom his actions might cause psychiatric damages Decision: Defendent is liable. Recovery in such cases was not limited to those who were participants in the event or a close relative. Chadwick v. British Railway Board The duty of the defendent confirmed to the extend to those who came upon the ‘immediate aftermath’ of the incident even if they do not see or hear the incident with their unaided senses. Test for recovery of damages for personal injury resulting from nervous shock: Close familial relation (excludes bystanders) Close proximity to the accident Shock suffered by claimant should from sight or hearing of the event on its immediate aftermath.
3) Jacob Mathew v. State of Punjab (2005)
Case laws- Duty of Care 9 Facts: Responded’s father was admitted to CMC Hospital, Ludhiana due to difficulty in breathing.The respondent called the nurse but no doctor came for 20-25 mins. In the hospital. Then two doctors came (Jacob Mathew and Allen Joseph). There was no functional oxygen cylinder and the nurse did not help in getting a cylinder. The respondent’s brother brought a cylinder but it was not made functional. Some time was lost here. Later, the patient was declared dead. Issue: Whether the accused committed negligence? Whether it is a civil or criminal liability? Decision: Mere deviation from normal professional practice is not an evidence for negligence. Mere accident is not evidence of negligence. (No oxygen cylinder is the accident here). Error of judgment by a professional is not negligence Simply because a patient did not react favourably to the treatment given by a physician, the doctor cannot be held liable - res ipsa loquitor. The court applied Bolam Test: (Bolam v. Friern Hospital) The standard to judge whether the person has been negligent would be that of an ordinary competant person exercising ordinary skill in that profession. Simple lack of care - Civil negligence. Gross negligence - Criminal negligence. The accused was not held liable for negligence under 304A IPC.
4) Page v. Smith (1996);
Facts: The Claimant was involved in car collision due to the defendent’s negligence which caused no physical injury but resulted in chronic fatique syndrome which became permanent after 25 years. Issue:
Case laws- Duty of Care 11 C’s psychiatric illness was not caused by the immediate effects of a post traumatic event. It was triggered by his awareness of risk of developing a condition. The event causing physical and personal injury is not same here unlike in Page vs, Smith. In Union of India vs. United India Insurance Co. limited, it was decided that the omission to act (not putting fences and propert structures in railway lines), The railways had a DOC. The 2 principles needed to check DOC was not satisfied in this case. In King vs. Liverpool city council, Act of 3rd party would not make the defendet liable.
Breach of Duty 1
Breach of Duty
Date Type Reading notes To succeed in the claim of negligence, the plaintiff after showing DOC, should show that the defendent breached the DOC. Objective standard: The standard based on factual measurements. Magnitude of risk (Bolton v. Stone) Importance of the object to be attained Possibility of precautions (Bolam case) (Bolam overuled in Bolitho’s case) The defendent failed to do what an ordinary, prudent person would have done or would not have done in that particular position. The ordinary prudent person is someone who has basic skill and care. Eg: Doctos have a standard of care that is different from nurses. Standard of a reasonable man: Striking a balance between risk involved and the consequence of not taking it. Degree of care varies upon the particular situation and the resonable standard of care varies in situations in that case.
Bolton vs Stone (1951)
Facts: The plantiff was hit by the cricket ball from the neighbouring cricket pitch outside of her home. The cricket ground had a fence of about 17 foot tall and incidents like this was extremely rare. The claimant sued the cricket club for negligence. Issue: What factors were relevant to determine how the reasonable person would behave Held: @August 24, 2023
Breach of Duty 3 What standard could be imposed on a driver who suffers from physical illness? Held: The defendent was held liable. The defendent did not lose control and knew something was wrong. This fell below the objective standards of a driver.
Mansfield v. Weetabix
The defedent was suffering from physical illness when he was driving the lorry. He was not aware of the situation else, he would have stopped driving. Eventually, he rammed into the shop of the claimant and caused damage. Issue: What SOC shuold be imposed on a driver with physical illness? Held: The standard of care should be altered on situations like this. The defendent did not have control over the situation. He was not held liable because a reasonable person would not have done anything different.
Causation in fact 1
Causation in fact
Date Type Reading notes In deciding whether the damage was caused by defendent’s wrongful act, but for test is used. But for the negligence of the defendent, the damage would not have occured.
Hotson vs. East Berkshire: Loss of chance case
Facts: The plaintiff fell from a tree causing him spinal injury. He went to the hospital where treatment was delayed. The diagnosis was made but it was incorrect. It was found after 5 days that the fall caused hip damage that could give permanent disability. The plaintiff claimed that the negligence of the hospital caused the disability. The chance for the prevention of the disability was 25%. Issue: Whether the fall or delayed treatment caused the disability? Held: The defendent was not held liable. The disability could not have been prevented eventhough the doctors had done propoer diagnosis. The delay was not cause the cause of his disability. Thus, whilst the defendant had indeed been negligent in his original assessment, it remained that loss of a chance was not a form of injury for which one could claim damages for tortious negligence in relation to medical problems Same judgment in Gregg vs. Scott
Bonnington Castings v. Wardlaw
@August 24, 2023
