Law of Tort

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1 Types of Tort

• Trespass against the person

  • Battery – intentional bringing a material object into contact with another person

  • does not necessarily involve violence (Nash v Sheen)

  • Assault – intentional bringing another person into reasonable fear of battery

• False imprisonment – depriving a person of their liberty

• Trespass (land) – entering, remaining or placing objects on another person’s land

• Nuisance – causing distress to another by, eg noise or smell

• Defamation — publication of a statement that causes or is likely to cause serious reputational harm

• Libel concerns permanent form

• Slander concerns transient or spoken form

• Ordinary defamation is a civil wrong, not a general criminal offence

• Deceit – deliberately misleading another into a detrimental position

• Passing-off – use of a similar name in a similar business such that confusion results in the minds of the public

• Negligence - carelessness or recklessness. More of this later

2 Negligence Generally

• 3 things to establish

  • Duty of care exists

  • Breach of that duty

  • Consequential loss, damage or injury to another party

• We all owe a duty of care to our legal neighbours

• Our legal neighbours are those people so directly affected by our acts that we should have them in mind as likely to be affected when we commit those acts (Donoghue v Stevenson)

• For novel duty situations, the Caparo approach asks three questions

  • Reasonable foreseeability

  • Proximity (legal neighbour)

  • Fair, just and reasonable to impose a duty of care

3 Negligence Generally continued

• 2^nd thing to establish is breach of the duty

• A greater degree of care is needed if risk of injury is high

• Glasgow v Taylor

• Take into account the seriousness of the risk (Paris v Stepney)

• Take into account the practicality and cost of risk avoidance (Latimer v AEC)

• Take into account standard practice

• Take into account the social benefit eg accident caused by emergency ambulance

• Professional practice is evidence, not conclusive: under Bolam the conduct must be supported by a responsible body of professional opinion, and under Bolitho that opinion must withstand logical analysis

• Res ipsa loquitur — Richley v Faull

• Mahon v Osborne

4 Negligence Generally continued

• 3^rd thing to establish is causality and possibility of ‘breaking the chain’

• The ‘but for’ test (Barnett v Chelsea and Kensington Hospital)(Wilsher v Essex)

• Multi-causes (Fairchild v Glenhaven)

• Novus actus interveniens

  • Acts of the injured party were unreasonable (McKew v Holland)

  • Acts of a third party increased the damage (Lamb v Camden)

  • Act of God (Carslogie v Norway)

• Remoteness of foreseeability (The Wagon Mound) (Jolley v Sutton)

• Defences

  • Contributory negligence (Sayers v Harlow)

  • Volenti non fit injuria (ICI v Shatwell)

• Vicarious liability

  • First identify a relationship capable of giving rise to vicarious liability

  • so, for example, an employer will be potentially liable for the tortious acts of the employee

  • Then ask whether the tort is sufficiently closely connected with that relationship

  • For example, an employer may be liable for an employee’s tort committed in the course of employment; agency liability is a separate issue

5 Negligence – Accountants

• Ultramares v Touche

• Hedley Byrne v Heller — negligent misstatement, reasonable reliance and assumption of responsibility

• JEB Fasteners v Marks Bloom — reliance and causation remain essential

• Caparo v Dickman — a statutory audit is not prepared for an investor’s takeover decision

• ADT v BDO — a direct representation may create an assumption of responsibility to a bidder

• NRG v EY

• Barings v Coopers

• BCCI v EY

• Incorporate

• Limited liability partnership