Cambridge A Level Law (9084): Law of tort – Study Guide

A tort is a civil wrong, other than a breach of contract, for which the law gives a remedy, usually damages. Tort law protects interests such as bodily safety, property and reputation, and it decides who must bear a loss when one person’s conduct harms another. In Cambridge A Level Law you must learn the elements of each tort, apply them to short scenarios and evaluate how well the law balances fairness, certainty and the avoidance of excessive liability.

Where this fits in the specification

Law of tort is Topic 4 of the A Level stage, in four parts: 4.1 the tort of negligence, 4.2 torts affecting land, 4.3 torts affecting the person and 4.4 general defences and remedies. This guide covers the standard core of each part, so check the syllabus for the exact list of torts and any statutes and cases you are expected to know.

The tort of negligence

A claimant must prove three things on the balance of probabilities: that the defendant owed a duty of care, that the duty was breached, and that the breach caused damage that was not too remote.

Duty of care

The neighbour principle in Donoghue v Stevenson (1932) states that we must take reasonable care to avoid acts or omissions that we can reasonably foresee would injure people closely and directly affected by them. The modern approach asks whether harm was reasonably foreseeable, whether there was sufficient proximity between the parties and whether it is fair, just and reasonable to impose a duty (Caparo Industries v Dickman, 1990). Established duty situations, such as driver to other road users and doctor to patient, do not need that analysis each time. Special rules apply to psychiatric harm, where a secondary victim must show a close tie of love and affection, proximity in time and space and direct perception of the event or its immediate aftermath (Alcock v Chief Constable of South Yorkshire, 1992), and to pure economic loss, which is usually not recoverable unless there is an assumption of responsibility (Hedley Byrne v Heller, 1964; Spartan Steel v Martin, 1973).

Breach

The standard is that of the reasonable person. A learner driver is judged by the standard of a competent driver (Nettleship v Weston, 1971) and a professional by the standard of a reasonably competent member of that profession (Bolam v Friern Hospital Management Committee, 1957). Factors include the likelihood of harm (Bolton v Stone, 1951), the seriousness of the harm, the cost and practicality of precautions (Latimer v AEC, 1953) and the social value of the activity. Children are judged by the standard of a child of the same age.

Causation and remoteness

Factual causation uses the but for test: would the damage have happened but for the breach (Barnett v Chelsea and Kensington Hospital, 1969, where the patient would have died anyway)? Legal causation asks whether the damage was of a kind that was reasonably foreseeable (The Wagon Mound (No 1), 1961). The defendant must take the claimant as they find them, so if the type of harm is foreseeable it does not matter that the extent is greater because of a weakness (Smith v Leech Brain, 1962).

Torts affecting land

• Private nuisance is an unlawful and unreasonable interference with another’s use or enjoyment of land. The claimant must have an interest in the land (Hunter v Canary Wharf, 1997). Factors in deciding reasonableness include the locality (Sturges v Bridgman, 1879), the duration and intensity of the interference, the sensitivity of the claimant, and the defendant’s motive. Physical damage to property is treated more strictly than interference with comfort (St Helen’s Smelting v Tipping, 1865). It is generally no defence that the claimant came to the nuisance (Miller v Jackson, 1977, where an injunction was refused but damages were awarded).
• Rylands v Fletcher (1868) imposes liability for damage caused by the escape of something dangerous that the defendant brought on to land in the course of a non-natural use. Foreseeability of the type of harm is required (Cambridge Water v Eastern Counties Leather, 1994), and the rule is treated as a form of nuisance (Transco v Stockport MBC, 2003).
• Trespass to land is direct and unjustified interference with land in the possession of another, such as walking on it or placing something on it. It is actionable without proof of damage (Entick v Carrington, 1765). Defences include consent, a right of entry given by law and necessity.

Torts affecting the person

Trespass to the person includes three torts, each a direct act that is intentional or reckless and actionable without proof of damage.

• Assault is an act that makes the victim reasonably fear immediate unlawful force. Words can be enough, and words can also negate an assault (Tuberville v Savage, 1669). Silent telephone calls can be an assault in some circumstances (R v Ireland, 1998).
• Battery is the application of unlawful force to another, however slight. Ordinary touching in everyday life is not a battery (Collins v Wilcock, 1984), and hostility is not required (Wilson v Pringle, 1987). It can be committed by a continuing act (Fagan v Metropolitan Police Commissioner, 1969).
• False imprisonment is the total restriction of a person’s freedom of movement without lawful justification. There must be a total restraint, so blocking one exit while another is open is not enough (Bird v Jones, 1845), the victim need not know about it (Meering v Grahame-White Aviation, 1920), and the restraint can be through a lawful arrest that becomes unlawful.

Wilkinson v Downton (1897) recognises liability for intentionally causing physical or psychiatric harm by words or conduct.

General defences and remedies

Defences

• Contributory negligence applies where the claimant’s own carelessness contributed to the damage. Under the Law Reform (Contributory Negligence) Act 1945, damages are reduced by the share that is just and equitable. In Froom v Butcher (1976) the Court of Appeal set guideline reductions for failure to wear a seat belt of 25 per cent where wearing it would have prevented the injury and 15 per cent where it would only have reduced its severity.
• Consent (volenti non fit injuria) is a complete defence where the claimant freely and knowingly accepted the risk of harm (Smith v Baker, 1891). It is rarely successful in negligence, because knowledge of the danger is not the same as agreement to take the risk (Morris v Murray, 1991 is an example where it succeeded).
• Illegality (ex turpi causa) bars a claim founded on the claimant’s own serious wrongdoing (Pitts v Hunt, 1991).
• Necessity and self-defence are defences to the trespass torts where force was reasonable and proportionate.
• Limitation: claims must be brought within the statutory time limits, for example three years for personal injury under the Limitation Act 1980, subject to extension.

Remedies

• Damages are the main remedy and are compensatory, intended to put the claimant in the position they would have been in had the tort not occurred. They are divided into special damages (quantifiable losses up to trial, such as medical bills and lost earnings) and general damages (non-pecuniary loss such as pain and loss of amenity, and future losses). Nominal damages mark the infringement of a right where no loss exists, as in trespass.
• Injunctions are discretionary court orders to stop a continuing wrong, common in nuisance, though a court may award damages instead (Miller v Jackson, 1977).
• Abatement and self-help let a claimant remove a nuisance in limited circumstances.

Worked example

Facts: Omari is driving carefully when Daria, driving too fast on a wet road, hits his car. Omari was not wearing his seat belt and would have suffered less serious injuries if he had been. His losses are 9,500 pounds medical costs, 22,000 pounds lost earnings and 16,500 pounds for pain and suffering. Advise on liability and damages.

1. Duty: a driver owes a duty to other road users, which is an established category.
2. Breach: driving too fast on a wet road falls below the standard of the reasonable driver.
3. Causation: but for Daria’s speed the collision would not have happened, and injury by collision is the foreseeable type of harm.
4. Total damage: 9,500 + 22,000 + 16,500 = 48,000 pounds. The first two items are special damages, which total 31,500 pounds, and the last is general damages.
5. Contributory negligence: the failure to wear a seat belt contributed to the severity of the injuries but not to the crash itself. Under the guideline in Froom v Butcher, a reduction of 15 per cent suits injuries that would have been reduced in severity. 15 per cent of 48,000 is 7,200 pounds.
6. Final award: 48,000 - 7,200 = 40,800 pounds. Daria pays 40,800 pounds and Omari bears the other 7,200 pounds himself.

Common mistakes

• Skipping the duty of care step because it seems obvious, or treating Caparo as the test for every case.
• Failing to separate factual causation (but for) from remoteness.
• Treating a trespass to the person as requiring proof of damage.
• Confusing private nuisance with trespass: nuisance is indirect interference, trespass is direct.
• Applying contributory negligence as a complete defence rather than a reduction.
• Listing cases without applying them to the facts.

Exam technique

Command words include explain, analyse, discuss and advise. In problem questions follow a structure: identify the tort, set out the elements with authorities, apply each to the facts, consider defences and end with remedies. In essays, use evaluation: for example, whether Caparo gives certainty or too much flexibility. Cite only the cases and statutes you are sure about.

Check your understanding

1. What three elements must be proved in negligence? Duty of care, breach and damage caused by the breach that is not too remote.
2. Which case set out the three-stage test for a duty of care? Caparo Industries v Dickman (1990).
3. What does the but for test decide? Factual causation: whether the damage would have happened without the breach.
4. What is the difference between nuisance and trespass to land? Nuisance is an indirect interference with use and enjoyment; trespass is a direct entry or interference with possession.
5. Why was Fagan v Metropolitan Police Commissioner important for battery? It treated battery as capable of being a continuing act.
6. How does contributory negligence affect damages? It reduces them by a share that is just and equitable; it is not a complete defence.
7. A claimant’s loss is 60,000 pounds and she is found 20 per cent to blame. What is the award? 60,000 - 12,000 = 48,000 pounds.

Frequently asked questions

What must a claimant prove in the tort of negligence? The claimant must prove, on the balance of probabilities, that the defendant owed a duty of care, that the duty was breached, and that the breach caused damage that was not too remote.

What is the Caparo test for a duty of care? Caparo Industries v Dickman (1990) asks whether harm was reasonably foreseeable, whether there was sufficient proximity between the parties, and whether it is fair, just and reasonable to impose a duty. Established duty situations, such as driver to other road users, do not need this analysis each time.

What is the difference between private nuisance and trespass to land? Private nuisance is an indirect, unreasonable interference with another person’s use or enjoyment of land. Trespass to land is a direct, unjustified interference with land in another’s possession and is actionable without proof of damage.

Is contributory negligence a complete defence? No. Under the Law Reform (Contributory Negligence) Act 1945 it reduces damages by the share that is just and equitable, rather than defeating the claim entirely.

Which topics does the Cambridge 9084 law of tort cover? Law of tort is Topic 4 of the A Level stage of Cambridge A Level Law 9084, in four parts: the tort of negligence, torts affecting land, torts affecting the person, and general defences and remedies.