Outline

Torts

Introduction to the law of

tort[s]

Negligence; Nuisance; Trespass

Cases
Donoghue v Stevenson [1932] AC 562
Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd or The Wagon Mound (No 1)
[1961]Overseas Tankship (UK) Ltd v The Miller
Steamship Co or The Wagon Mound (No 2) [1967]
Bolam v Friern Barnet Hospital Management
Committee (1957)

3 Blackboard exercise
because its important and its part of
the coursework
3[maybe 4] cases

Section Aim and Objectives

The section might be described via an overall aim and measurable

objectives.
To consider the law of tort and its relevance to engineering projects and
engineering professionals.
Within the overall aim the following measurable objectives are set
The student will be able to:
Describe the development of the law of tort;
Explain the essential requirements for a claim of negligence

a duty of care;
a breach of that duty;
the breach must be the cause of the loss claimed;
the loss must be foreseeable, i.e. not too remote;
there must an actual loss or damage;
the absence of any of the recognised defences.

Definition
Tort a civil wrong not amounting to a
crime independent of contract
Middle English: injury, wrong; Old French
Wrong; Medieval Latin tortum wrong
injustice

Explain the tort of nuisance

Law of Tort or Law of Torts

General Principle of Liability Theory
Law of tort; all harm should be actionable [in the absence of just
cause or excuse]; under the flexibility of case law new torts
would come into being

The Law of Torts

Only specific torts

The law of torts in the ascendancy; the courts have

refused to create new torts even when given the
opportunity [e.g. perjury and eviction]
Invasion of privacy - no tort - Article 8 ECHR, which

The most famous case in history

Donoghue v Stevenson [1932] AC 562

The snail in the ginger beer
The Paisley snail
Founded the modern tort of negligence
across the world

guarantees a "right to respect for privacy and

family life"

Donoghue v Stevenson [1932] AC

562

Donoghue v Stevenson [1932] AC

562
http://en.wikipedia.org/wiki/Donoghue_v_S
tevenson
http://www.thepaisleysnail.com/information
.shtml

Facts

Legal Anaysis

May Donoghue, ne MAlister, and a friend took their seats in the

Wellmeadow Caf in Paisley. They were approached by the caf
owner, Francis Minchella, and Donoghue's friend ordered and paid
for a pear and ice and an ice-cream drink
The owner brought the order and poured part of a bottle of ginger
beer into a tumbler containing ice cream
Donoghue drank some of the contents and her friend lifted the bottle
to pour the remainder of the ginger beer into the tumbler. The
remains of a snail in a state of decomposition plopped out of the
bottle into the tumbler
Donoghue later complained of stomach pain and her doctor
diagnosed her as having gastroenteritis. She also claimed to have
suffered emotional distress as a result of the incident
Years later IBA tracked her down she was not aware how she had
affected law throughout the [common law] world

Donoghue had not ordered or paid for the drink herself,

so there was no contractual relationship between
Donoghue and the caf owner
The Scots law of delict at this time did not allow for
Donoghue to sue the caf owner
There was a contractual relationship between the caf
owner and the friend, but the friend had not drunk the
ginger beer. Ginger beer was not a dangerous product,
and the manufacturer had not fraudulently
misrepresented it
At that time, those were the only two grounds for
claiming negligence against a manufacturer. On the face
of it, the law did not provide a remedy for Donoghue.

Result

Lord Atkins Neighbour Principle

Donoghue lodged a writ in the Court of Session on April 1929 in the

case of May Donoghue, ne MAlister v David Stevenson. The writ
alleged that May Donoghue had become ill with nervous shock and
gastroenteritis after drinking part of the contents of an opaque bottle
of ginger beer and David Stevenson, the manufacturer, "owed her a
duty to take reasonable care that ginger beer he manufactured,
bottled, labelled and sealed, and invited her to buy, did not contain
substances likely to cause her injury." Donoghue claimed damages
of 500.
The manufacturer denied liability and that any such duty was owed.
The Scottish court dismissed Donoghue's claim as having no legal
basis on the authority of their earlier decision in Mullen v AG Barr.
One of their lordships said that "the only difference between
Donoghue's case and the mouse cases was the difference between
a rodent and a gastropod and in Scots law that meant no difference
at all."

There must be, and is, some general conception of relations giving
rise to a duty of care, of which the particular cases found in the
books are but instances. ...The rule that you are to love your
neighbour becomes in law you must not injure your neighbour; and
the lawyer's question: Who is my neighbour? receives a restricted
reply. You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law, is my neighbour? The answer
seems to bepersons who are so closely and directly affected
by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my
mind to the acts or omissions that are called in question.
Christian Principle [See Luke 10: 27 Love your neighbour as
yourself]
Explain torts: General Principle of Liability Theory; Love thy
Neighbour Principle Christian/Judaeism/Islam; relationships without
contract

3 elements

Duty of Care

A legal duty to take care

That duty must be breached
Foreseeable damage must be suffered as a
consequence of that breach

There is no single test for establishing whether a duty of care exists.

In each case it is necessary to look at the case law in order to
decide whether a particular situation or relationship gives rise to a
duty of care. However, the courts have laid down a number of
principles which provide some guidance in determining whether a
duty of care exists.
The starting point is the neighbour principle laid down by Lord Atkins
in Donoghue v Stevenson in the following passage:

Defendant not able to raise accepted

defences

"The rule that you are to love your neighbour becomes in law; you must
not injure your neighbour. And the lawyer's question, who is my
neighbour? receives a restricted reply. You must take reasonable care
to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who then in law is my neighbour? The
answer seems to be -persons who are so closely and directly affected
by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions
which are called in question."

Duty of Care a 2 stage test

Duty of Care a 3 stage test

In a later case the House of Lords did attempt to lay down a simple
two-stage test for the existence of all liability in negligence. In Anns
v Merton London Borough Council 1978 AC728, Lord Wilberforce
said:
"...the question has to be approached in two stages. First one has to
ask whether; as between the alleged wrongdoer and the person who
has suffered damage there is sufficient relationship of proximity or
neighbourhood such that; in the reasonable contemplation of the
former, carelessness on his part may be likely to cause damage to
the latter- in which case a prima facie duty of care arises. Secondly,
if the first question is answered affirmatively. It is necessary to
consider whether there are any considerations which ought to
negate, or to reduce or limit the scope of the duty or the class of
person to whom it is owed or the damages to which a breach of it
may give rise".

This trend culminated in the formulation of a "three-stage

test for establishing a duty of care in the case of Caparo
Industries pIc v Dickman 1990 2AC 605, as follows:
What emerges is that, in addition to the foreseeability of
damage, necessary ingredients in any situation giving
rise to a duty of care are that there should exist between
the party owing the duty and the party to whom it is owed
a relationship characterised by the law as one of
'proximity' or 'neighbourhood' and that the situation
should be one in which the court considers it fair, just
and reasonable that the law should impose a duty of a
given scope on the one party for the benefit of the other.
The three stage test is therefore: foreseeability of
damage; proximity; and fair, just and reasonable.

Breach of the duty

The Defendant Must Be In Breach Of That Duty

has the defendant has fallen below the standard of care required in the
circumstances and has thus been negligent? In general, the amount of care required
by the law is an objective standard and is measured by the conduct of the notional
reasonable man, or the man on the Clapham omnibus. Negligence is the omission to
do something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do: or doing something which
a prudent and reasonable man would not do.
If a defendant holds himself out as possessing a special skill over and above that of
reasonable people, he or she will be judged by the degree of skill normally shown by
those with that special skill.
However, the standard may be modified by:

an emergency situation;
the categorisation of the activity; work which requires special skill, the standard of care
required is the degree of care normally shown by a specialist in that kind of work;
a child will be judged by the objective standard expected of a child of that age and not by the
standard of an adult.

Duty to the whole world?

The Breach Must Be The Cause Of The

Loss Of Which The Claimant Complains
The question is whether the defendant's act is recognised in law as
having caused the claimant's loss.
In determining this, the first stage is to apply what is usually known
as the "but-for" test: if, "but for" the defendant's negligence, the
claimant would not have suffered the loss, causation is prima facie
(that is, on the face of it, or presumptively) established. This is
illustrated by the case of Barnett v Chelsea and Kensington Hospital
Management 169 1QB 428. The claimant's husband felt very ill after
drinking some tea and had gone to a casualty department. The duty
doctor refused to see him and Mr Barnett subsequently died from
arsenic poisoning. It was held that the doctor's negligent refusal to
see him did not cause his death even if the doctor had seen Mr
Barnett it would have been too late to effectively treat him and he
would have died in any event.
Conversely Baker v Willoughby.

Pregnant Edinburgh Fishwife [Bourhill v Young [1943] AC 92 ] dont want to make a 5th
Case but ]

The Claimant's Alleged Loss Must Be

Foreseeable, i.e. Not Too Remote

The wagon mound

Overseas Tankship (UK) Ltd v Morts Dock

and Engineering Co Ltd or The Wagon
Mound (No 1) [1961]
Overseas Tankship (UK) Ltd v The Miller
Steamship Co or The Wagon Mound (No 2)
[1967]
Damage will be recoverable where the extent of
possible harm is so great that a reasonable man
would guard against it (even if the chance of the loss
occurring was very small)

Defendant not able to raise

accepted defences
Voluntary assumption of risk
Volenti non fit injuria

Participation in illegal activities

Ex turpi causa non oritur actio

Inevitable accident
Contributory negligence
http://www.saskschools.ca/curr_content/law30/ci
vil/lesson5/5a.html

Volenti non fit injuria

Latin: "to a willing person, no injury is done" or
"no injury is done to a person who consents
volenti is a full defence, i.e. it fully exonerates
the defendant who succeeds in proving it. The
defence has two main elements:
The claimant was fully aware of all the risks involved,
including both the nature and the extent of the risk;
and
The claimant expressly (by his statement) or impliedly
(by his actions) consented to waive all claims for
damages. Knowledge of the risk is not sufficient:
sciens non est volens ("knowing is not volunteering").
consent must be free and voluntary

Standard of care

Vicarious liability

Bolam v Friern Barnet Hospital Management

Committee (1957) QBD [Tort negligence - breach
factors to consider test of reasonableness standard of care and skill expected ]
D hospital gave electro-convulsive therapy that broke
bones. Some doctors would give relaxant drugs others
would not.

The word 'vicarious' derives from the Latin for 'change' or

'alternation' or 'stead
Idea of one person being liable for the harm caused by
another, because of some legally relevant relationship.

Held: A doctor is not guilty of negligence when acting in

accordance with a practice accepted as proper by a
responsible body of medical doctors skilled in that
particular art.
The standard of care is of a reasonable engineer not the
best engineer

parent and a child, or an employer and an employee.

Injured person can sue an employer for damage by their

employee, which was caused 'in the course of
employment.'
If a university lecturer put students in danger by
continuing a lecture during a power cut, students could
sue the lecturer, or sue the University.
Suing the University is more practical as they are more
likely to have more money or insurance

Remember the test

Duty of care
Breach
Foreseeable damage suffered as a
consequence
Absence of the recognised defences

Nuisance
The rule in Rylands and Fletcher [1868]

Nuisance
A tort
Legally, the term nuisance is used in three ways:
to describe an activity or condition that is harmful or annoying to
others (e.g., indecent conduct, a rubbish heap or a smoking
chimney);
to describe the harm caused by the activity or condition (e.g.,
loud noises or objectionable odours);
to describe a legal liability that arises from the combination of the
two.

The law of nuisance was created to stop such

bothersome activities or conduct when they
unreasonably interfered either with the rights of other
private landowners or with the rights of the general
public

The rule in Rylands and Fletcher

The rule in this case is the most-often quoted example of
strict liability:
an occupier of land who brings onto it anything likely to do
damage if it escapes, and keeps that thing on the land, will be
liable for any damage caused by an escape.

Facts
The defendant occupied land near to where the plaintiff
operated a coal mine. The coal seams extended under
the defendant's land. These had been previously worked
but the tunnels and shafts had been cut off and forgotten
about. The defendant obtained approval to construct a
reservoir to provide water for his mill. The water from this
reservoir permeated the old coal shafts beneath and
flooded the plaintiff's mine.

Some other torts

Non Negligent Harm

Nuisance
Defamation: tarnishing the reputation of
someone; it is in two parts, slander and libel.
Slander is spoken defamation and libel is printed
Intentional torts assault, battery, false
imprisonment, intentional infliction of emotional
distress and fraud.
Property torts trespass to land, trespass to
chattels and conversion

What is non-negligent harm/no-fault

compensation
Non-negligent harm insurance is often
called "no-fault" insurance because it is
insuring against something happening that
could not have been foreseen, and where
fault is/can not be attributed

Omission[s]
Can you do nothing?
You see a dangerous
structure/machine/situation; do you have
to take action? Legally? Morally?
Do you owe a duty to the whole world
Is it special for professionals [engineers]?
Duty to warn?

Tort Discussion threads

Why is the law of torts important to
engineers?
Engineers shouldn't be liable unless
they have a contract with someone
If you walk on my bridge/travel in my
plane/use my machine. You willingly
accept the risk that it will fall down/drop
out of the sky/take your eye out. No
damages for you. Violenti non fit injuria