Law of Torts

Topics: Tort, Common law, Tort law Pages: 16 (5528 words) Published: September 11, 2012
English tort law

English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case. A tort is not enforced by the police, and it is a civil action taken by one citizen against another, and tried in a court in front of a judge (only rarely, in certain cases of defamation, with a jury). Tort derives from middle English for "injury", from Anglo-French, from Medieval Latin tortum, from Latin, neuter of tortus "twisted", from past participle of torquēre. Following Roman law, the English system has long been based on a closed system of nominate torts, such as trespass, battery and conversion. This is in contrast to the Continental legal systems, which have since adopted more open systems of tortious liability. There are various categories of tort, which lead back to the system of separate causes of action. The tort of negligence is however increasing in importance over other types of tort, providing a wide scope of protection, especially since Donoghue v Stevenson. For liability under negligence a duty of care must be established owed to a group of persons of which the victim is one, a nebulous concept into which many other categories are being pulled. But as Lord MacMillan said in the case, "the categories of negligence are never closed".[1] Negligence

See also: Negligence and Professional negligence

A decomposed snail in Scotland was the humble beginning of the modern law of negligence Negligence is a tort which targets a breach of duty by one person to another. The famous landmark case of Donoghue v Stevenson,[2] in which Mrs Donoghue, the claimant, consumed part of a drink containing a decomposed snail while in a public house in Paisley, Scotland. The snail was not visible, as the bottle of ginger beer in which it was contained was opaque. Neither her friend, who bought it for her, nor the shopkeeper who sold it were aware of its presence. Donoghue sued the manufacturer, Mr Stevenson for her consequent illness, using negligence as, not having purchased the drink herself, the little consumer protection legislation available in 1932 was inapplicable. The members of the House of Lords agreed that Mrs. Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan, as above, thought this should be treated as a new product liability case. Lord Atkin argued that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbour. He quoted the Bible in support of his argument, specifically the general, biblical principle that "love thy neighbour." "The liability for negligence… is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay… 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."[3] Thus, in the world of law, he created the doctrine that we should not harm our neighbours. The elements of negligence are: 1.A duty of care (see Donoghue v Stevenson)

2.Breach of that duty (see Nettleship v Weston)
3.Breach causing harm in fact (see Smith v Leech Brain & Co.) 4.The harm must be not too remote a consequence of the breach (see The Wagon Mound (No 2)) The establishment of a duty of care is, like negligence itself, broken up into further elements, a three step test (or in some cases more). Donoghue v Stevenson laid the groundwork for subsequent developments, and from the words of Lord Atkin's speech, he can be seen to refer to firstly, the concept of reasonable foreseeability of harm; secondly, the claimant and the defendant being in a relationship of proximity; and thirdly, and more...
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