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, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
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 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.

Negligence

Liability for negligence arises when one person breaches a duty of care owed to another. The main elements of negligence are:
  1. A duty of care
  2. Breach of that duty
  3. Breach causing harm in fact
  4. The harm must be not too remote a consequence of the breach
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 Donoghue v Stevenson. Famously, Mrs Donoghue claimed compensation for illness after she consumed a ginger beer containing a decomposed snail in a public house in Paisley, Scotland. The bottle was opaque so neither Mrs Donoghue nor the shopkeeper could see a snail, and at the time she could not sue the shopkeeper for breach of contract or consumer rights. The House of Lords by a majority held that the manufacturer, Mr Stevenson, was liable in tort. Lord Atkin held liability was "based upon a general public sentiment of moral wrongdoing for which the offender must pay" and people "must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." By contrast, Lord Macmillan suggested that the law should protect Mrs Donoghue by incremental analogy to previous cases. Nevertheless, Lord Atkin's speech was widely followed and was understood to contain three main points for establishing a duty of care. First, the concept of reasonable foreseeability of harm; second, the claimant and the defendant being in a relationship of proximity; third, and more loosely, it being fair, just and reasonable to impose liability on the defendant for his careless actions. This three-step scheme, however, did not crystallise until the case of Caparo Industries Plc v Dickman. A company called Caparo took over another company by buying up a majority of its shares. It did this because it obtained word from a company audit that the target was financially sound. The audit was prepared by a group of accountants and was intended for shareholders, not outsiders. Once Caparo owned the company it found that the finances were in fact pretty shoddy, and so it sued the accountants for being negligent in its audit preparation. The House of Lords found against Caparo and established the current threefold test. Although it was "reasonably foreseeable" that outsiders might learn of the carelessly prepared information, it was not the case that Caparo and Dickman were in a relationship of "proximity". This the court used as a term of art to say that it should not be the case that absolutely anyone who heard something said that was stupid and acted on it can sue. The court was reacting to its concern that to allow a claim here might open the floodgates of litigation. The third element, whether liability would be "fair, just and reasonable", was an extra hurdle added as a catch-all discretionary measure for the judiciary to block further claims.
  • , found that the police owed a duty of care to a passer-by who was injured when they tried to arrest a drug-dealer. Held that the Caparo threefold test should not be used in all cases, but the law should develop incrementally.
  • , 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". 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. Allowance is usually made for the defendants age and a lower standard of a "reasonable child of a certain age" is applied to children. 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.
  • Montgomery v Lanarkshire Health Board 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, often to deal specifically with a particular area of liability.
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 96 ER 525
  • Re Polemis and Furness, Withy & Co 3 KB 560
  • Wagon Mound AC 388
  • Hughes v Lord Advocate 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. 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.
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.
  • ''Titchener v British Railways Board''

    Psychiatric injury

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 injury must have been an event caused by the defendant – the defendant must have owed a duty of care to the claimant, but not a unilateral duty covering every eventuality, and it must have been precisely identified what duty was owed and whether the harm could have been foreseen.
  • The claimant must have been involved in the injury.
  • The event must have caused a recognised psychiatric injury or post-traumatic stress disorder.
The courts had been cautious for a number of reasons, including the fear of floodgates, potential for fraud, problems of proof and diagnosis, 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 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 AC 155, it was held that Mr Smith was liable for causing Mr Page psychiatric injury 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 39 BMLR 146, the claimant was a "participant" in the event. 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 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 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.
The case of Alcock v Chief Constable of South Yorkshire Police established a three factors for a secondary victim to succeed:
  • Foreseeability – there must be a close relationship of love and affection between the secondary victim and the primary victim. This is presumed in the case of spouses and between parents and children, but must be demonstrated in all others.
  • Proximity – there must be temporal and spatial proximity between the claimant and the accident.
  • How the accident was caused, or proximity of perception.
Case law where this test has been applied includes McLoughlin v O'Brian 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 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.