English tort law
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law,
In English law, torts like other civil cases are generally tried in front a judge without a jury.
History
Following Roman law, the English system has long been based on a closed system[clarification needed] of nominate torts, such as trespass, battery and conversion. This is in contrast to continental legal systems, which have since adopted more open systems of tortious liability. There are various categories of tort, which lead back to the system of separate causes of action. The tort of negligence is however increasing in importance over other types of tort, providing a wide scope of protection, especially since Donoghue v Stevenson. For liability under negligence, a duty of care must be established owed to a group of persons to which the victim belongs, a nebulous concept into which many other categories are being pulled.[2]
Negligence
Liability for negligence arises when one person breaches a duty of care owed to another. The main elements of negligence are:
- A duty of care (see Donoghue v Stevenson)
- Breach of that duty (see Nettleship v Weston)
- Smith v Leech Brain & Co.)
- The harm must be not too The Wagon Mound (No. 2))
In some situations, defences will be available to negligence. Special rules, and considerable bodies of case law have developed around four further particular fields in negligence: for psychiatric injury, economic loss, for public bodies, and when concerning omissions and third parties.
Duty of care
The establishment of a duty of care is usually broken up into a three-step test. The first case to establish a general duty of care was
- Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, found that the police owed a duty of care to a passer-by who was injured when they tried to arrest a drug-dealer
- James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC 40, rejected claim by police officers charged but acquitted of assaulting a prisoner for damage to their reputations
Breach of duty
Once a duty of care has been established, it must be shown that a duty has been breached. The question the courts ask is whether the behaviour exhibited by the defendant fell below the threshold of a "reasonable man" (the objective test).[7] In some cases where the defendant was in a special profession, e.g. being a doctor, the court will ask what standard of care a "reasonable doctor" or the like might have done.[8] Allowance is usually made for the defendants age and a lower standard of a "reasonable child of a certain age" is applied to children.[9] On the other hand, no allowance is made for other personal circumstances, such as the fact that the defendant was inexperienced in the task he set out to perform. He is expected to perform this task as a reasonably skilled and competent person.[10]
- Montgomery v Lanarkshire Health Board [2015] UKSC 11
Causation and remoteness
Causation is complex, and is usually discussed in two parts. Simple causation is a question of whether "but for" the action by the defendant harm would have resulted. There has been some deal of discussion over whether a contributory cause is enough, and a variety of supplementary tests have been developed (e.g. the material contribution to risk and material damage to damage tests), often to deal specifically with a particular area of liability (asbestos cases, for instance).
- Barnett v Kensington & Chelsea NHS Trust
- McGhee v National Coal Board
- Bolitho v City and Hackney Health Authority
- Fairchild v Glenhaven Funeral Services Ltd
- Gregg v Scott
After a causal link has been properly established, the courts may still deny compensation if the harm was a very remote consequence of the initial wrong. So long as a type of damage is foreseeable, however, the manner in which it occurred – however remote – is of no concern to the courts.
- Scott v Shepherd (1773) 96 ER 525
- Re Polemisand Furness, Withy & Co [1921] 3 KB 560
- Wagon Mound (No.1)[1961] AC 388
- Hughes v Lord Advocate [1963] AC 837
Defences
Finding a successful defence absolves the defendant from full or partial liability for damages, which makes them valuable commodities in the court. There are three main defences to tortious liability; to argue the claimant voluntarily undertook the risk of his harm, that he contributed to the harm, or that he engaged in illegal activity.
Volenti non fit injuria is Latin for "to the willing, no injury is done". It operates when the claimant either expressly or implicitly consents to the risk of loss or damage. For example, if a regular spectator at an ice hockey match is injured when a player strikes the puck in the ordinary course of play, causing it to fly out of the rink and hit him or her, this is a foreseeable event and regular spectators are assumed to accept that risk of injury when buying a ticket. A slightly more limited defence may arise where the defendant has been given a warning, whether expressly to the plaintiff/claimant or by a public notice, sign or otherwise, that there is a danger of injury. The extent to which defendants can rely on notices to exclude or limit liability varies from country to country. This is an issue of policy as to whether defendants should not only warn of a known danger, but also take active steps to fence the site and take other reasonable precautions to prevent the known danger from befalling those foreseen to be at risk.
Contributory negligence is a mitigatory defence, whereby a claimant's damages are reduced in accordance with the percentage of contribution made by the claimant to the loss or damage suffered. Thus, in evaluating a collision between two vehicles, for example, if the wronged driver were not wearing a seatbelt, he would most likely be contributorily negligent.[11] The court will then quantify the damages for the actual loss or damage sustained, and then reduce the amount paid to the claimant by 20%. Contributory negligence can also function as a full defence, when it is assessed at 100%, as in Jayes v IMI Kynoch.[12]
Ex turpi causa non oritur actio is the illegality defence, the Latin for "no right of action arises from a despicable cause". If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained "but for" the property owner's intervention. However, a trespasser may be able to recover damages due to the unsafe state of the premises (see Occupiers' Liability below).
- Titchener v British Railways Board
Psychiatric injury
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Historically, English courts have been reluctant to allow claims for nervous shock. Early claims involved ladies who suffered what the courts referred to as a "malady of the mind". It was not expected for men to succumb to such problems. Today, courts are considerably less cautious but additional hurdles are still imposed upon claimants under certain circumstances. The following criteria must be satisfied:
The courts had been cautious for a number of reasons, including the fear of floodgates (indeterminate liability), potential for fraud (brought on by people exaggerating their claims), problems of proof and diagnosis (including the costs of expert opinion), psychiatric illness may be considered less serious than physical harm, the claimant is often a secondary victim, and finally, the courts argued that Parliament is better suited to dealing with this area. In the case of Dulieu v White [1901] 2 KB 669, the claimant, Mrs Dulieu, was working in a public house. While she was serving, the defendant negligently drove his horse-drawn van into the bar. She suffered shock which resulted in a miscarriage, and she sued the defendant. Mr White was held liable for causing nervous shock resulting in miscarriage, as the claimant reasonably believed herself to be in danger. Similarly, in Page v Smith [1995] AC 155, it was held that Mr Smith was liable for causing Mr Page psychiatric injury (chronic fatigue syndrome) after a car crash, because Mr Smith could have reasonably foreseen that Mr Page would suffer physical injury for the crash. So liability for causing psychiatric injury depends on the foreseeability of the physical injury, as long as the psychiatric illness is medically recognised. In Young v Charles Church (Southern LTD)(1997) 39 BMLR 146, the claimant was a "participant" in the event (i.e. a primary victim – Evans & Hitchinson LJJ). He and Mr Cook were raising scaffolding poles in an area that was not secured by the employers; the power lines were not switched off. Mr Cook touched a pole to the electric wiring and suffered a horrific death which caused Mr Young great distress. Even though he never feared for the loss of his own life, the court held that Mr Young was in the area of potential damage, so he was entitled to claim compensation. Finally, in McLoughlin v Jones [2002] QB 1312, there was an allegation that Mr McLoughlin was a bad landlord, threatening and beating up tenants to get their rent from them in cash. He was charged for a criminal offence and sentenced to prison. He claimed that his solicitors (Jones and Others) had acted without the evidence, especially the witness statement of a person who knew that Mr McLoughlin was not present when the beatings allegedly took place. It soon became apparent that he was actually an upstanding member of society and he suffered psychiatric injury as a result of the imprisonment and loss of reputation. (Note that solicitors have a pre-existing duty of care towards their clients.) The case of Alcock v Chief Constable of South Yorkshire Police established a three factors for a secondary victim to succeed:
Case law where this test has been applied includes McLoughlin v O'Brian [1983] AC 410, in which the husband and children of the claimant were involved in a car accident that was caused by the negligence of the defendant. The claimant found out about the accident an hour later and, when she got to the hospital two hours later, one child had already died. She saw her husband and children suffering and suffered shock, depression and a change of personality. The court established a spectrum of proximity; a pedestrian should be able to withstand seeing the accidents that occur in everyday life, but a family member of the victims will inevitably suffer greater emotional harm. Nonetheless, simply seeing the aftermath of the accident and not witnessing it is insufficient proximity. Similarly, seeing a video of the accident is insufficient. Alcock v Chief Constable of South Yorkshire Police (1992) HL was a test case in the aftermath of the Hillsborough disaster, where 95 spectators were crushed to death and 400 injured in a stadium. The event was televised and broadcast on radio. In Alcock, claims for damages for psychiatric illness were brought by fifteen relatives of the victims of the tragedy; some of them had been present at the match - but not in the area where the disaster occurred - and others had seen it on television or heard it on the radio. The Chief Constable of South Yorkshire Police denied that the claimants were owed a duty of care. On the basis of the three exclusion criteria mentioned above, all claims were ruled out. Assumption of responsibility
Pure economic loss
Omissions and third parties
Public bodies
Strict and specific tortsWhile negligence actions set a general groundwork, many further fields of tort have developed their own identity or, where judicial decision-making was seen as insufficient by Parliament, through statutory reform. Major statutory torts concern food safety, health and safety and environmental law. For example, liability under the Nuclear Installations Act 1965, the Merchant Shipping Act 1995, or liability imposed on utility (gas and electricity) companies to ensure the safety of their products, all of which are strict liability.[13] While a statute has said nothing specific, a tortious duty may have arisen. This will be a question of statutory interpretation (e.g. Stovin v Wise [1996] AC 923). Product liabilityIn consumer protection, with the Workplace safetyOne of the principal terms that accompanies the employment relationship is that the employer will provide a "safe system of work". As the industrial revolution developed, accidents from a hazardous working environment were a front line target for labour legislation, as a series of HSWA 1974, are a set of health and safety regulations, which must also stay in line with the European-wide harmonised requirements of the Health and Safety Directive.[15]
.jpg) While the modern scheme of legislation and regulation engenders a comprehensive approach to enforcement and worker participation for health and safety matters, the common law remains relevant for getting civil law compensation, and some limits on an employers' duties. Although the legislative provisions are not automatic, breach of a statutory duty is evidence that a civil law duty has been breached. Injured employees can generally claim for loss of income, and relatives or dependents recover small sums to reflect distress. The common law of tort also remains particularly relevant for the type of liability an employer has where there is scientific uncertainty about the cause of an injury. In proportionate basis, thus throwing the risk of employers' insolvency back onto workers. Immediately Parliament passed the Compensation Act 2006 section 3 to reverse the decision on its facts. It has also been held in Chandler v Cape plc,[27] in 2011, that even though a subsidiary company is the direct employer of a worker, a parent company will owe a duty of care. Thus shareholders may not be able to hide behind the corporate veil to escape their obligations for the health and safety of the workforce.
Road safetyMany serious accidents in practice take place on the roads. Like workplaces, this encouraged Parliament to require compulsory insurance for harm. The Road Traffic Act 1988 requires that motorists either be insured against any liability for injuries to other drivers, pedestrians or passengers and damage to property, or have made a specified deposit (£500,000 in 1991) and keeps the sum deposited with the Accountant General of the Supreme Court. Using an uninsured motor vehicle on public roads is an offence. Private land to which the public have a reasonable right of access (for example, a supermarket car park during opening hours) is considered to be included within the requirements of the Act. Police may seize vehicles that do not appear to have necessary insurance in place. Drivers caught driving without insurance for a vehicle they own are liable to be prosecuted by the police and, upon conviction, will receive either a fixed penalty or magistrate's courts penalty.
Environmental damage
Occupiers' liabilityOccupiers' Liability is currently governed by the two Occupier's Liability Acts, 1957 and 1984. Under these rules, an occupier, such as a shopkeeper, a home owner or a public authority, who invites others onto their land, or has trespassers, owes a minimum duty of care for people's safety. One early case was Cooke v Midland Great Western Railway of Ireland [1909] AC 229, in which Lord Macnaughton felt that children who were hurt whilst looking for berries on a building site, should have some compensation for their unfortunate curiosity.
NuisanceThe tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. A good example of this is in the case of Jones v Powell (1629).[28] A brewery made stinking vapours waft to neighbours' property, damaging his papers. Because he was a landowner, the neighbour sued in nuisance for this damage. But Whitelocke J, speaking for the Court of the King's Bench, said that because the water supply was contaminated, it was better that the neighbour's documents were risked. He said "it is better that they should be spoiled than that the common wealth stand in need of good liquor." Nowadays, interfering with neighbours' property is not looked upon so kindly. Nuisance deals with all kinds of things that spoil a landowner's enjoyment of his property. A subset of nuisance is known as the rule in Rylands v Fletcher,[29] which originates in a case where a dam burst into a coal mine shaft. In such cases, a dangerous escape of some hazard, including water, fire, or animals, gives rise to a strict liability claim. This is subject only to a remoteness cap, familiar from negligence when the event is unusual and unpredictable. This was the case where chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's reservoirs.[30] TrespassA trespass is a direct injury to a person, his property or land, committed directly and intentionally by the defendant, for example, walking on someone's land is not trespass but cutting a gate into pieces with a saw is. However, this rule did not cater for anything injured indirectly by a person, for example if a farmer sets fire to a field, and someone's home is subsequently damaged. Trespass by the case did, however, provide a legal writ for injury caused indirectly by an action.
DefamationDefamation means tarnishing the reputation of someone. It is divided into two parts, slander and libel. Slander is spoken defamation and libel is defaming somebody through print (or broadcasting). Both share the same features. To defame someone, you must (a) make a factual assertion (b) for which you cannot provide evidence of its truth. Defamation does not affect the voicing of opinions, but comes into the same fields as rights to free speech in the European Convention 's Article 10.
Breach of confidenceUK courts have created a common law responsibility to not share non-public information about others under certain circumstances, regardless of the existence of a contractual agreement. Intentional tortsIntentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories, including tort(s) against the person, including assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud. Property torts involve any intentional interference with the property rights of the claimant. Those commonly recognised include trespass to land, trespass to chattels, and conversion. Economic torts and competitionTyldesley in the 1926 General Strike in the UKEconomic torts protect people from interference with their trade or business. The area includes the doctrine of antitrust or competition law. The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon."[31]
Two cases demonstrated economic tort's affinity to competition and labour law. In Mogul Steamship Co. Ltd. Through a recent development in terms of the contract .
The English doctrine of restraint of trade was the catalyst for much of what is now called "competition laws" (or sometimes "antitrust"). These laws are a way of restraining those who would restrain "free competition" in the market economy, through monopolising production, setting up cartels, imposing unfair trading conditions, prices and so on. The English approach has traditionally been very flexible and liberal in its scope, but draconian when it did deem certain behaviour to be in restraint of trade. Many of these laws around the end of the nineteenth century were focused on the emasculation of trade unionism, until the reforming government of 1906 and the Trade Disputes Act 1906. Aside from the common law, legislation was introduced shortly after the second world war to foot policy on a statutory basis, the Monopolies and Restrictive Practices Act 1948, followed later by the Restrictive Trade Practices Act 1956 and the Monopolies and Mergers Act 1965. Since 1972, however, the UK has fallen under the cross-border-competition law regime of the European Community, which is found primarily in Articles 81 and 82 of the Article 82) – face fines from the public-enforcement authorities, and in some cases they also face a cause of action in tort. A huge issue in the EU is whether to follow the U.S. approach of private damages actions to prevent anti-competitive conduct.[40] In other words, the question is what should be seen as a private wrong (as was held in the vertical restraints case of Courage Ltd v Crehan[41]) and what should be seen as a public wrong where only public enforcers are competent to impose penalties. In 1998 the United Kingdom brought its legislation up to date, with the Competition Act 1998, followed by the Enterprise Act 2002, a regime mirroring that of the European Union. The domestic enforcers are the Office of Fair Trading and the Competition Commission .
Vicarious liability
Vicarious liability refers to the idea of an employer being liable for torts committed by their employees, generally for policy reasons, and to ensure that victims have a means of recovery.
RemediesDamagesThe main remedy against tortious loss is compensation in 'damages' or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defence against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction. This means a command, for something other than money by the court, such as restraining the continuance or threat of harm.[45] For people who have died as a result of another person's tort, the damages that their estate or their families may gain is governed by the Fatal Accidents Act 1976 (replacing the Fatal Accidents Act 1846). Under s.1A the spouse or dependent of a victim may receive £11,800[46] in bereavement damages. InjunctionsAs a remedy to tort, injunctions are most commonly used in cases of Nuisance. The court may impose an injunction on a tortfeasor, such as in Sturges v Bridgman. This legally obliges the tortfeasor to stop or reduce the activity causing the nuisance and its breach could, potentially, be a criminal offence. Injunctions may be used instead of or as well as the awarding of damages (above). Theory and reformScholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: saw four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.From the late 1950s a group of legally oriented economists and economically oriented lawyers emphasised incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. They are often described as the law and economics movement. Ronald Coase, one of the movement's principal proponents, submitted, in his article The Problem of Social Cost (1960),[48] that the aim of tort should be to reflect as closely as possible liability where transaction costs should be minimised. Calls for reform of tort law come from diverse standpoints reflecting diverse theories of the objectives of the law. Some calls for reform stress the difficulties encountered by potential claimants. Because of all people who have accidents, only some can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery".[49] Consequently, in New Zealand, the government in the 1960s established a "no-fault" system of state compensation for accidents. Similar proposals have been the subject of command papers in the UK and much academic debate.[citation needed ]
There is some overlap between crime and tort, since tort, a private action, used to be used more than criminal laws in centuries gone. For example, an assault is both a crime and a tort (a form of trespass to the person). A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of incarceration is usually available as a penalty for serious crimes, but not usually for torts.
See alsoNotes
References
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