Tort law: practice questions with explanations

1What a tort is

A tort is a civil wrong, other than a breach of contract, that gives the victim a right to compensation. The word comes from the French for “wrong”.

Think of a driver who crashes into your bike, a neighbour whose loud factory noise keeps you awake, or a newspaper that publishes lies about you. You had no contract with them, but the law still lets you sue.

The person who sues is the claimant. The person sued is the defendant, and a person who commits a tort is a tortfeasor.

Tort is different from the two areas next to it:

• Contract enforces duties the parties chose. Tort imposes duties on everyone, whether they agreed or not.
• Criminal law punishes on behalf of the state. Tort compensates the individual victim. The same act, such as a punch, can be both a crime and a tort.

This lesson follows English law, with notes on Dutch law. In the Netherlands, the general rule is liability for an unlawful act (onrechtmatige daad) under Article 6:162 BW.

2Negligence step by step

Negligence is the most important tort. The claimant must prove three elements: a duty of care, a breach of that duty, and damage caused by the breach that is not too remote.

1. Duty of care. Donoghue v Stevenson created the neighbour principle: take reasonable care not to harm people you can reasonably foresee being affected by what you do.

Many duties are already established: driver to other road users, doctor to patient, employer to employee. For a new situation, courts use the Caparo test: harm was foreseeable, there was proximity, and a duty is fair, just and reasonable.

Some losses are restricted. There is generally no duty to rescue a stranger (no liability for a pure omission). Pure economic loss is generally not recoverable, except for example negligent advice relied on in a special relationship (Hedley Byrne v Heller).

2. Breach. The defendant breaches the duty by falling below the standard of the reasonable person in their position. A learner driver is judged as a competent driver (Nettleship v Weston).

Professionals such as doctors are judged by the Bolam test: did they act as a responsible body of their profession would? The courts weigh how likely the harm was (Bolton v Stone), how serious it would be (Paris v Stepney BC) and the cost of precautions.

3a. Factual causation. The “but for” test: would the harm have happened but for the breach? If it would have happened anyway, the claim fails (Barnett v Chelsea and Kensington Hospital).

3b. Remoteness. Only damage of a reasonably foreseeable type is recoverable (The Wagon Mound). The exact way it happened and its extent need not be foreseen (Hughes v Lord Advocate).

The eggshell skull rule: you take the victim as you find them. If the type of harm was foreseeable, the defendant pays for all of it, even if an unusual weakness made it much worse.

A novus actus interveniens, a new independent act such as a highly unreasonable act of a third party, can break the chain of causation.

3Other torts and the defences

Besides negligence, exam questions often cover these torts:

• Occupiers' liability: an occupier owes lawful visitors the common duty of care (Occupiers' Liability Act 1957). Trespassers get a lower duty, only in specific circumstances (1984 Act).
• Private nuisance: unreasonable interference with someone's use or enjoyment of land. Only a person with a right to the land can sue (Hunter v Canary Wharf). The usual remedy is an injunction.
• Rylands v Fletcher: strict liability for the escape of a dangerous thing brought onto land in a non-natural use.
• Trespass to the person: battery (direct, intentional unlawful force), assault (making someone expect immediate force) and false imprisonment (complete restriction of movement). These are actionable without proof of damage.
• Defamation: a statement that harms reputation, refers to the claimant and is published to a third party. It must cause or be likely to cause serious harm (Defamation Act 2013).
• Product liability: strict liability of the producer for a defective product (Consumer Protection Act 1987, based on the EU Product Liability Directive).

Vicarious liability is not a tort but a rule about who pays. An employer is liable for torts its employees commit in the course of their employment, or closely connected with it (Lister v Hesley Hall). It is not usually liable for independent contractors.

The main defences:

• Consent (volenti non fit injuria): the claimant freely and knowingly accepted the risk. This is a complete defence.
• Contributory negligence: the claimant's own carelessness contributed to the harm. Damages are reduced by a just percentage; the claim does not fail.
• Illegality (ex turpi causa): a claim arising from the claimant's own serious illegal conduct may be barred.

4The method for a problem question

For a negligence problem, work through the elements in a fixed order and stop to say clearly when one fails.

1. Identify the claimant, the defendant and the harm. Note the type of harm: personal injury, damage to property, psychiatric harm or pure economic loss.
2. Duty: is there an established duty (road user, doctor, employer, occupier)? If not, apply the Caparo test.
3. Breach: state the standard (reasonable person, competent driver, Bolam for professionals) and compare it with what the defendant did.
4. Factual causation: apply the “but for” test. Check for an intervening act that breaks the chain.
5. Remoteness: was the type of harm foreseeable? Apply the eggshell skull rule where relevant.
6. Defences: consent, contributory negligence (give a percentage if you can), illegality.
7. Remedy and who pays: damages, and vicarious liability if the tortfeasor is an employee. Conclude in one sentence.

5A worked example

Read the facts, then open the steps one at a time. Try to reach each conclusion yourself first.

6Common mistakes

• Mixing up factual causation and remoteness. “But for” asks whether the breach caused the harm; remoteness asks whether that type of harm was foreseeable.
• Requiring the extent of the harm to be foreseeable. Only the type must be; the eggshell skull rule covers the rest.
• Treating contributory negligence as a complete defence. It only reduces damages.
• Lowering the standard for beginners. A learner driver is judged as a competent driver.
• Forgetting that pure economic loss and pure omissions are generally not recoverable.
• Making the employer liable for an independent contractor, or for an employee acting entirely outside their job.

7How exam questions look

• Easy: key terms and facts. For example: the three elements of negligence, what nuisance or battery is, what contributory negligence does.
• Medium: applying the concepts. A short scenario about the standard of care, causation, occupiers' liability, vicarious liability or nuisance, where you choose the result.
• Hard: cases and analysis. The facts of a leading case (Fairchild, Robinson, Hunter v Canary Wharf, Mohamud…) and you choose what the court held and why.

Identify which element the question is testing before you look at the options. Many wrong options state a true rule that belongs to a different element, for example a remoteness rule offered for a causation problem.

Some questions use Dutch law. Article 6:162 BW requires an unlawful act, attributable to the defendant, that caused damage. Article 6:163 BW adds relativity: the broken norm must aim to protect the claimant against that damage.