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Introduction to Tort Law & Negligence

Lecture L1 Compulsory in Part I Reading: Horsey & Rackley chs 1–2

Snapshot

Tort law is the body of civil law that imposes obligations on people for the benefit of others, breach of which entitles the injured party to compensation (or, occasionally, an injunction). Negligence is the dominant modern tort and the only one guaranteed to appear on the exam. Top answers always start by anchoring the dispute in the four-element framework — duty, breach, causation/remoteness, recognised damage — and then ask which element is genuinely contested on the facts.

1. What the law of tort actually does

Tort sits between contract and crime. Contract enforces voluntarily assumed obligations; crime punishes wrongs against the state. Tort enforces obligations that are imposed by law on everyone, regardless of agreement, in favour of identifiable claimants who have suffered a recognised type of harm. The remedy is overwhelmingly compensatory damages — though injunctions, declarations and (rarely) exemplary damages also feature. As Winfield's classic definition puts it, "tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages".

Examiners reward candidates who can articulate the functions of tort law. The standard list (drawn from Cane and from Horsey & Rackley) is:

Compensation — restoring claimants, so far as money can, to the position they would have been in but for the wrong.
Deterrence — pricing carelessness so that potential defendants internalise the cost of risk-creation.
Vindication of rights — affirming that the claimant's interest (bodily integrity, property, reputation, enjoyment of land) was wrongfully invaded.
Loss-distribution — through liability insurance, spreading the cost of accidents across activity participants rather than concentrating it on victims.
Corrective justice — the moral case for making the wrongdoer answer to the person they wronged.

Tort does not guarantee freedom from harm. A great many losses are damnum sine injuria — loss without legal injury — and lie where they fall. Pure economic loss in negligence, gratuitous risks taken voluntarily, harm caused by lawful competition: all these illustrate the law's filtering function. Identifying that filter, and explaining why it operates, is what a good answer does.

2. The map of torts

It is more accurate to speak of a law of torts than a law of tort: there is no single overarching cause of action, but a set of distinct torts, each protecting particular interests.

Tort	Interest protected	Mental element
Negligence	Physical integrity, property, certain economic interests	Carelessness
Battery / Assault	Bodily integrity, freedom from apprehension of force	Intention
False imprisonment	Liberty	Intention
Private nuisance	Enjoyment of land	Knowledge / foresight
Defamation	Reputation	Strict (with defences)
Product liability (CPA 1987)	Safety from defective products	Strict
Rylands v Fletcher	Land — escape of dangerous things	Strict

The point of the table is not memorisation but orientation: when you see facts in a problem question, ask which interest is invaded. That tells you which tort to discuss.

3. The historical ascent of negligence

Until the late nineteenth century English common law operated through the forms of action: separate procedural slots for trespass, case, detinue, trover and so on. There was no general law of negligence; rather, careless conduct was an alternative way of committing some other tort, available only in specific situations (innkeepers, common carriers, masters of dangerous things). The pivotal building blocks were:

Langridge v Levy (1837) 2 M&W 519

Facts: A defective gun, sold knowing it would be used by the buyer's son, exploded and injured him.
Holding: The seller was liable; the case is an early example of liability for a "thing dangerous in itself".
Why it matters: Recognised that liability could attach to careless misstatement and dangerous goods, foreshadowing duty-of-care reasoning.

Heaven v Pender (1883) 11 QBD 503

Holding: Brett MR proposed a general duty to take reasonable care wherever ordinary care would prevent danger to another — too broad to be adopted at the time, but the seed of Donoghue.

Donoghue v Stevenson [1932] AC 562 (HL)

Facts: Mrs Donoghue drank ginger beer from an opaque bottle bought for her by a friend; a decomposed snail emerged. She had no contract with the manufacturer.
Holding: The manufacturer owed her a duty of care notwithstanding the absence of contract. Lord Atkin formulated the famous "neighbour principle": take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour — i.e. persons so closely and directly affected by your act that you ought reasonably to have them in contemplation.
Significance: Created a generalised tort of negligence with conceptual unity. Modern duty analysis traces its lineage to Lord Atkin's speech.

The post-Donoghue story is one of expansion (peaking in Anns v Merton LBC [1978] AC 728), retreat (Murphy v Brentwood DC [1991] 1 AC 398; Caparo v Dickman [1990] 2 AC 605), and consolidation in Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 — covered fully in Topic 2.

4. The negligence equation

Every problem question on negligence is solved by working through four elements in order. Master this skeleton; everything else hangs from it.

Duty of care — does the defendant owe the claimant a duty in respect of this kind of harm? In established categories (road users, doctors, employers, manufacturers) the duty is taken as read. In novel cases use the Robinson incremental approach and, only if no analogous category fits, the three-stage Caparo test.
Breach — has the defendant fallen below the standard of the reasonable person in the defendant's position? Apply the risk-balancing factors from Bolton v Stone, Latimer, Watt v Hertfordshire and the Bolam/Bolitho test for professionals.
Causation & remoteness — factual causation (the but-for test, supplemented by material-contribution and the Fairchild exception) and legal causation (was the kind of damage reasonably foreseeable: Wagon Mound (No 1); was there a novus actus interveniens; does scope of duty cut the chain: Khan v Meadows).
Recognised damage and absence of defence — the claimant must show actionable damage of a kind the law recognises (personal injury, property damage, certain pure economic and psychiatric harms). Then check defences: contributory negligence, volenti, illegality (Patel v Mirza), exclusion under the Consumer Rights Act 2015 / UCTA 1977.

In an exam, write the four elements out as headings before you start drafting prose. Examiners are looking for clean structural signalling. They will award structural marks even where your application is shaky.

5. Theory and policy: why does the law draw the lines it does?

You will not ordinarily face a pure jurisprudence question, but theoretical fluency lifts essay marks from a 2:1 to a First. Three positions to know:

Corrective justice (Weinrib, Beever): the law of tort is intelligible only as a bilateral relation between wrongdoer and victim. Liability is the moral consequence of the breach of a duty owed to the claimant. This account explains Donoghue's neighbour principle and the rejection of liability "to the world at large".
Loss-distribution / instrumentalism (Atiyah's The Damages Lottery): tort is an inefficient and arbitrary system for compensating accident victims; first-party insurance and social-security schemes outperform it. The argument fuels critiques of "compensation culture" and of Donoghue's expansion.
Rights-based theory (Stevens, Nolan): tort vindicates pre-existing rights — bodily integrity, property, reputation. Damages are the law's response to the infringement of a right, not a free-standing scheme of accident compensation.

Two further issues flagged in the lecture warrant a paragraph in any essay on policy:

Compensation culture. The Government and the Court of Appeal have repeatedly rejected the empirical claim that England suffers a litigation explosion (see Tomlinson v Congleton BC [2003] UKHL 47 — Lord Hoffmann's reference to the "social cost" of over-deterrence). The McDonald's coffee anecdote, often used to illustrate "compensation culture", is in fact more nuanced than its tabloid retelling.
The fault principle. Fault remains the centre of gravity of negligence. The law tolerates strict liability only at the margins (CPA 1987 product liability; Rylands; vicarious liability). When you write about "fault", be precise: it means an objective failure to attain the standard of the reasonable person, not subjective moral blameworthiness.

6. Common pitfalls

Treating "duty of care" as a free-floating proposition. A duty is always owed by D, to a class including C, in respect of a particular kind of damage. State all three coordinates whenever you assert a duty.

Citing the Caparo three-stage test as the default test for duty. Since Robinson (2018), the default is the incremental approach: ask first whether the case falls within an established category. Caparo applies only in genuinely novel cases.

Conflating negligence with carelessness. Negligence is the tort (a four-element cause of action). Carelessness is one part of one element (the breach standard). A defendant can be careless without being liable in negligence; conversely, a defendant who is not subjectively careless can still breach the objective standard.

Forgetting to identify the kind of damage. "Damage" in negligence is shorthand: personal injury, property damage, pure economic loss, psychiatric injury and pure psychiatric distress are different heads, with different duty rules. Always say which you are dealing with before you discuss duty.

7. Exam checklist

Identified the type of damage suffered (personal injury / property / PEL / psychiatric).
Stated whether the duty falls within an established category (default after Robinson).
Where novel, deployed the Caparo three-stage analysis explicitly.
Articulated the breach standard with one or two of the risk factors (probability, gravity, utility, cost).
Applied the but-for test; flagged any Fairchild / material contribution issues.
Addressed remoteness (Wagon Mound foreseeability of kind of damage; Hughes; eggshell-skull rule).
Considered novus actus interveniens if a third party / claimant's own act intervenes.
Closed by canvassing defences: contributory negligence, volenti, illegality.