Negligence in law of torts

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Introduction:
 The law of Tort covers a wide range of
situations, including such diverse claims as those
of a passenger injured in a road accident, a
patient injured by a negligent doctor, a pop star
libelled by a newspaper; a citizen wrongfully
arrested by the police, and a landowner whose
land has been trespassed on.
 In broad terms, a tort occurs where there is a
breach of a general duty fixed by a civil law

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 Winfield’s definition of tort:-
“Tort liability 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.”

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 When tort is committed, the law allows the
victim to claim money, known as damages, to
compensate for the commission of the tort
 Paid by the person who committed the tort
(Tortfeasor)
 Victims will claim damages if they can prove
that the tort caused some harm, but in others,
which are described as actionable per se, they
only need to prove that the relevant tort has
been committed.

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Comparing Tort with Other legal
wrongs
 Tort and crimes
 A crime is a wrong which is punished by the
state; and the primary aim is to punish the
wrongdoer.
 A tort action is between the wrongdoer and the
victim, and the aim is to compensate the victim
for the harm done.

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 In some tort cases, damages may be set at a high
rate in order to punish the wrongdoers, while in
criminal cases, the range of punishments now
includes provision for the wrongdoers to
compensate the victim financially.

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 Tort and Breaches of Contract
 A tort involves breach of duty which is fixed by the
law, while breach of contract is a breach of a duty
which the party has voluntarily agreed to assume.
 In contract, duties are usually only owed to the
other contracting party, whereas in tort, they are
usually owed to people in general.
 Main aim of tort proceedings is to compensate for
harm suffered, contract aims primarily to enforce
promises.
 Defendant can be liable in both contract and tort

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 CONCURRENCE OF CRIMES & TORT
 There are cases in which the same incident may
give rise to both criminal and tortious
proceedings.. E.g., would be a car accident, in
which the driver might be prosecuted by the
state for dangerous driving, and sued by the
victim for the injuries caused.

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 The meaning of pure economic loss.
 It is vital to understand what is meant by pure
economic loss (the words ‘financial’ or ‘pecuniary’ are
also used). It is to be distinguished from consequential
economic loss. Consequential economic loss is
recoverable and arises in these cases:
 A claimant suffers personal injuries: damages are
recoverable for the economic consequences of the
personal injuries, such as lost wages or salary if the
claimant is unable to work because of the injuries.
 The claimant’s property is damaged. The claimant can
recover for the economic consequences, which might
be: the reduction in the value of the property or the
cost of repairing it and might include the loss of profit
from the use of the property.

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Pure economic loss by contrast arises:
 Where there is no physical injury to any
person or to any property;
 Where there is physical injury to a
person other than the claimant or to the
property of some person other than the
claimant.

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Injuria Sine Damno
 As a result of the wrongful act committed by the
defendant the harm caused must result in legal
damage to the plaintiff. A legal damage is an
infringement of a legal right and such infringement of
a legal right without actual damage is called Injuria
Sine Damno.
 Ashby v White
 Lord Holt, ………….that if there is an infringement
of a legal right, even if such infringement does not
result in pecuniary damage, the defendant will be
liable for the violation of plaintiff’s rights.

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Damnum sine injuria
 The Plaintiff may not be able to bring an action against the
defendant, if a form of harm does not infringe or breach of a
legal duty despite actual loss or damage. The damage so done
and suffered is called Damnum sine injuria and the reason
for its permission by the law are various.
 Damnum sine injuria.. Harm done may be caused by the
person who is merely exercising his own right; as in the case
of the loss inflicted on individual traders by competition in
trade or the damage is done by a man acting under necessity
to prevent a greater evil or in the exercise of a statutory duty.
 Mogul Steamship Co. v McGregor, Gow & Co. (1892)
A.C.25

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Tort and the requirement of fault
 In addition to proving that the defendant has
committed the relevant act or omission, it is sometimes
necessary to prove a particular state of mind on the part
of the defendant. This is described as a tort requiring
an element of fault, and depending on the tort in
question, the required sate of mind may be intention,
negligence or malice
 Most torts require some element of fault, the few do
now are described as torts of strict liability.

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 Intention
 Involves deliberate, knowing behaviour.
 Negligence
 As a state of mind, negligence essentially means
carelessness—doing something without
intending to cause damage.
 Malice
 To act maliciously means acting with a bad
motive. Malice and motive in general- is
irrelevant in tort law.
 Bradford Corporation v Pickles (1895)

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 The Bradford Corporation owned a reservoir on
property adjoining Pickles’ land. Water naturally
flowed under Pickles’ land and into the
reservoir. Pickles wanted to force the
corporation to buy his land at a high price. With
this aim in mind, he dug up some of his land, in
order to stop the natural flow into the reservoir.
 It was already settled law that it was not a tort
for a landowner to interfere with the flow of
underground water, but the corporation argued
that although Pickle’s action would normally
have been lawful, his malice made it unlawful.
The House of Lords rejected this arguments

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 In defamation, certain defences will be unavailable if
the defendant has acted maliciously, and in nuisance,
malice can render what would have been a reasonable
act an unreasonable one.
 Hollywood Silver Fox Farm Ltd v Emmett (1936)
 Strict Liability
 Strict Liability tort is committed simply by performing
the relevant act or omission, without having to prove
any additional state of mind at the time.
 Rylands v Fletcher.

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Reasons for a requirement of fault
 In practice the majority of torts do require some
proof of fault, and there are several reasons why
this has traditionally been thought desirable.
 Control of Tort actions
 Laissez faire policy
 Deterrence
 Wider liability would merely shift the burden
 Accountability
 Strict Liability merely reverses the burden of
proving fault

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Arguments against a requirement of
fault
 Unjust distinctions
 Illogical distinctions
 Lack of deterrence
 Tort Should compensate and not punish
 Damages disproportionate to fault
 Expense
 Unpredictability
 Objective standard

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Alternative methods of compensation
for personal injury
 The Social security system
 Compensation for victims of crime
 Insurance
 Special funds
 No fault systems
 Alternative methods of making wrongdoers
accoutable

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Reform of the tort system
 The Royal Commission on Civil Liability and
Compensation for Personal Injury, known as the
Pearson Commission.