The law of tort seeks to compensate individuals for loss suffered as the result of the action of another.
Where a contract exist between the parties, the courts are reluctant to allow the tort to become a “back door” for disputes.
However, there are situations where a party will not be in a direct contractual relationship with another and can still be sued under the law of tort. Some important points to know:
- Understanding the concepts of Negligence and Duty to care
- Consequential economic loss v pure economic loss
- Negligent misstatements
- Promissory estoppel
- Contributory negligence
- Proximity/Remoteness: neighbour principle
The place of Torts in the Law
Neighbour principle – Donoghue v Stevenson (1932)
Duty of care to “persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected” [Lord Atkins]
Relationship of proximity – Anns v Merton London Borough Council (1978)
A two stage test to determine a duty of care:
- Is there a relationship of proximity that creates a duty of care? “a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the [alleged wrongdoer], carelessness on his part may be likely to cause damage to the [party who suffered the damage]” Lord Wilberforce
- If yes, are there any considerations that would reduce the implications of that duty?
The composite test – Caparo v Dickman
A three-stage “composite test” to establish a duty of care:
- the harm or loss must be reasonably foreseeable;
- there must be proximity of relationship between the claimant and the defendant; and
- it must be fair, just and reasonable that a duty be imposed in the particular case.
Courts reluctant to award pure economic loss – Murphy v Brentwood District Councel (1990)
Defect in the house discovered before causing any physical injury or damage. Loss suffered was purely economic loss of the expenditure incurred in remedying the defect or abandoning the property.
Duty of care for making statements – Heldey Byrne v Heller
Duty of care for making statements may arise if there were a ‘special relationship’ between the parties of very close proximity, almost equivalent to a contractual relationship. However, in this particular case the defendants owed no duty due to a disclaimer of liability.
Nervous shock – Alcock v Chief Constable of South Yorkshire
When secondary victims claim for nervous shock, they need to show the following:
- Close relationship with the primary victim
- Need to be proximate in time and space
- Shock caused through sight or hearing of the event or the immediate aftermath.
Likelihood of damages / Reasonable man – Bolton v Stone
Does one need to foresee for any harm that can be caused to another, no matter how unlikely it is for an unfortunate event or accident to happen?