Task 1: Tort Function and Purpose and its place in the English law system .

. Tort is a branch of private law. The other main branches are contract, property and restitution (sometimes known as unjust enrichment). Similar to laws of contract, tort laws originate in the Middle Ages, as most common law did, and it is also based on obligations. The name tort had its origins in the Latin word turtus, later on tort in French which means wrong. Because it is focused on remedying wrongs rather than punishing them, tort is a civil wrong. With time, the emphasis in tort had moved very much on the interrelated duties, alternatively negligence achieving an increasing importance, has developed its own individual aspects. The law of torts developed initially, through the early legal system as a response to specific circumstances and as means of providing remedies for the damages done in commonly reoccurring situations. If someone who suffered lost or damages of a particular kind, the early courts developed a new writ (an original writ) that suited the similar circumstances. This helps explaining why such a wide range of interest to which the law of torts applies. There were two main remedies developed by the early law. These were: Action for trespass- deled with interferences with land, the property and the person itself. Action in the case- originally meaning remedying indirect interferences With regard to the function of tort laws, there are two precise aims of the laws of torts which also, to a certain extent , look at the main two remedies available: damages and injunctions had been exposed to, to the extent of the damage suffered. The main outcome of successful tort action is to compensate the victim of the wrong it has been exposed to. The most satisfactory way of dealing with any wrong is ensuring that it does not happen again, or even better, to prevent it occurring at all and that means deterrence. Differences between criminal and civil wrong. Civil law Civil law is a form of private law and involves the relationship between individual citizens. Its the mechanism through which individuals can make claims against others and have their right adjudicated and enforced. The purpose of civil law is to settle the disputes between individuals and to provide the best suited remedies. This side of law it is not concerned with punishment as such. The role of the State in civil law is t establish the general framework of legal rules and to provide the legal institutions for operating those rights, but the activation of civil law is strictly a matter for the individuals concerned. Contract, tort and property laws are generally aspects of civil law. Criminal law

Criminal law is an aspect of public law and it relates to conduct which the State considers and as disapproval, seeks to control or to eradicate it. This side of law involves the enforcement of particular forms or behavior and the State, as the representative of society acts positively to ensure cooperation and obedience. Consequently, criminal cases are brought by the State in court in the name of the Crown and cases are reported in the form of Regina v (Regina-Latin name for Queen), whereas civil cases are referred to by the names of the parties involved in the dispute. Compared In civil law the case its brought into court by the injured party (the plantiff) against the party the party who has inflicted those injuries to him (the defendant), whereas in a criminal law case, the case is filed by the government, which becomes the plaintiff, or the defendant against the person who has committed the criminal offence, (the accused). Ex. If a person commits the tort of nuisance, causing injury to another person, he will have to file the case, and sue the person who caused the injury in the court, while if a person commits the murder of another person, it is the duty of the government to investigate the crime, and hire a prosecutor for the public prosecution. Unlike in the case of civil law, here the state represents the case against the accused and not the victim. Punishment- in a case of criminal law the court can decide whether the accused is guilty or not guilty, and if guilty he is punished for the offense committed which can be incarceration in a jail or payment fines to the government or sometimes death penalty, whereas in a case under civil law, the court may hold the defendant to be liable or not liable, and if proven to be liable, the court may order him to compensate for the injuries suffered by the victim, and sometimes award the plaintiff an injunction ordering the defendant to stop the act which is injuring the plaintiff, but the defendant is never executed for an act which comes under civil law. In civil law, as the case is between two parties and does not affect the society, the state does not get involved. The plaintiff sues the defendant in the court and hires a lawyer to represent him. Whereas in a criminal case the victim reports the crime to the police, whos duty is to find the accused and government also hires a prosecutor to prosecute their case in the court. The payment for these services comes from the public funds. In an act under criminal law, the prosecutor has to prove that the defendant had the motive and intention of committing the act and knew that the act would cause injury to the victim, while in the civil law, the presence or absence of malice, or intention to cause the injury to the plaintiff is irrelevant. In Bobs situation, because he has broken then law by over speeding so he will have a criminal case standing. However due to negligence he has injured one person and another person has lost its life and so he will be facing a civil case brought in court by the one too whom he owed a duty of care.

Task 2: In legal terms, negligence is a civil tort that occurs when a person breaches their duty of care owed to another and as result, that person suffers an injury or a loss. There are three requirements that must be met in order to consider an action negligent, an these are: the duty of care- providing that there is a duty of care towards the other party involved; the breach of the duty of care owed to the other party; and finally the damages caused to this party as a result of the breach of duty of care. There are many cases in negligence that establish the authorities or the tort of negligence but the most important that constitutes the guidelines for negligence and especially for the duty of care is Donoghue v Stevenson 1932. When Mrs. Donoghue claimed damages to the producer of the ginger beer that she has drunk because she has found a snail on the bottom of the bottle, Lord Atkin has formulated the Neighbors Principle as a general test for liability in negligence. This will be the wide rule of duty of care. Before that, courts have been making decisions weather a duty of care existed or not on a case by case basis. During the same case Lord Macmillan said that the categories of negligence are never closed as this case also established a new duty situation between a manufacturer and the ultimate consumer of the goods. In negligence there are already few well established duty situations in which there is a presumed and customary duty of care already and the claimant doesnt need to establish one. Examples of these would be the road users duty toward all the other users of the road, the duty of an employer to its employees or that of a doctor to its patients. It the situation or the relationship between the Claimant and the Defendant is not a very well established duty of care, then the claimant would have to prove a duty of care by overlooking three circumstances or factors. They are also known as the theree-parttest which the lawyers established in the case Caparo v Dickman (1990). This is also called the Caparo test. Firstly, there must be a reasonable forseability or the neighbors principle meaning that the defendant would have reasonably foresee that his negligent act woulc cause any damage or injury to the claimant. With Fardon v Harcourt Rivington ( Fardon claimed damages for the injury caused by Harcourts dog, which he deliberately left in the car). Secondly, the courts have to research and see if there was proximity between the claimant and the defendant that is if the claimant was part of a group to which a duty of care was owed to by the defendant or was their relation proximate enough. This can be seen in the Osman v Ferguson (1993) where the police knew that there was a real risk of an attack on the victim and the victim was in the end murdered by the same attacker. It was held in the court that there was enough closeness between the victim and the police.

However, the case did not succeed because it was held that it was not fair, just and reasonable to impose a duty of care on the police. This third part of the test, the fair, just and reasonable motivation to impose a duty of care is actually a subject of public policy. In order to satisfy this third, the courts will have to decide whether there is any public policy that they may consider to have owed a duty of care and they tend to be reluctant in imposing a duty on public authorities. We can observe that by looking at Hill v Chief Constable of South Yorkshire (1990) ( Hill-the mother of the last victim of a serial murderer claimed damages against the police Constable in charge of catching because he didnt do his job very well) where it was held that imposing a duty on the police could lead to the policemen being inhibited while exercising their duty and leading eventually to lowering their standards. In some circumstances, however the police do owe a duty of care as it can be seen in MPC v Reeves. (2001). Having established that a duty of care was owed, the claimant then has to prove that the defendant has breached that duty. In order to do that the courts have established a standard of care expected from anyone in a care position. There are two well defined standards: the reasonable man test and the reasonable specialist test and they can measure objectively the breach of duty. The reasonable man is any ordinary person who performs a particular task, for example someone ridding a bike on the road is expected to do that competently. The specialist or professional test refers to any professional fully prepared and trained in what they are doing so a duty of care it is expected from them implicitly. A number of factors are being considered by the courts in order to assess these standards and they are: The age of the defendant was defendant is too young? In the case Mullins v Richards (1998) two girls were playing with a ruler and one of them ended up being injured- it was held that because the defendant side was just 15 years old she should not foresee an injury when they were playing, therefore the claimant lost. The likelihood of danger was the risk so high so that that person should have taken even more measure of precautions? In Bolton v Stone (1964) the claimant was hit by a cricket ball coming from the cricket club nearby, therefore he sued, but the courts decided that there wasnt enough frequency of that happening over the time so they decided that a reasonable cricket club could not have taken any further precautions. The claimant lost for this reason. The vulnerability of the claimant was the person to which a duty of care was owed in a special situation? In Paris v Stepney BC (1951), the claimant that had one eye only was working for a local garage but because they didnt provide him with goggles, while working, he lost the other eye. Although the likelihood of danger was small, the

employer should have considered the claimants situation and ultimately his vulnerability, therefore the claimant won. The utility of defendants actions was the action or a great importance? In the case Watt v Hertfordshire CC (1954) the claimant fireman sued his employers in Negligence when he was injured by a heavy jack that had not been properly secured on his vehicle whilst attending an emergency call. His case failed because, although the employer did owe the fireman a duty of care, whether it had breach that duty depended on whether it behaved reasonably in the circumstances. In this case the circumstances were that the fire engine was being prepared for an emergency call, and it was not unreasonable that less attention was paid to matters of stowage than could have been appropriate in other situations. The costs of avoiding harm would the avoidance of a breach lead to excessively expensive measures? In Latimer v AEC (1953) the claimant slipped on an oily film and injured his ankle. The sawdust put down to soak up liquid did not cover the entire floor. The oily film was due to water from an exceptionally heavy storm caused. As the defendant has done all that a reasonable person would do in the circumstance and they could not have eliminated the risk completely without closing the factory, therefore the claimant has lost the case. The claimant must produce evidence which infers a lack of reasonable care on the part of the defendant. However, if no such evidence is found, and although it is obvious that the defendant was negligent, the courts will use a rule called res ipsa loquitur (developed by the judges themselves) meaning the things speak for themselves. In a trial, if the claimant has shown that the defendant was in control of the situation and causing injury) and the injury was more than likely to be caused by negligence, then the defendant has to prove that he was not negligence. After establishing a duty of care and a breach of the duty, the claimant must then prove that the damages suffered are due to defendants breach of duty (factual causation) and that the loss is not too remote (legal causation). Factual causation- the clamant must prove that harm would not have occurred but for the negligence of the defendant. This test is best lustrated by Bennett v Chelsea & Kensington Hospital (Mrs. Barnett sued for negligence because her husband died few hours after he was sent hoe. Had the doctor examined Mr. Barnett at the time there would have been nothing the doctor could have done to save him. The hospital was not liable as the doctor's failure to examine the patient did Not cause his death. In the occurrence o multiple causes leading to injury from different parties, the claimant must prove that the defendants breach of duty caused the harm or was a material contribution. In the case Fairchild v Glenhaven Funeral Services (2002) the

claimants have proved that the only way of getting mesothelioma is by being employed by more than one employer. The claimant was successful in establishing causation. If there are two or more causes occurring in succession it may be possible to identify the factual cause of the damage, but the but for test is inappropriate. Case law has established for these situations general principles: -if the first defendant injures the claimant and the second defendant causes similar or increased damage, the first defendant may be liable for the whole loss flow, from the first injury and regardless of further injury by the second defendant, as we can se in Baker v Willoughby (1970) The claimant argued that if it wasnt for the first injury( caused by the defendant) he wouldnt have had the likelihood of being injured again. The trial judge rejected this argument which he said was more ingenious than attractive. But it was accepted by the Court of Appeal and it was held for the defendant to remain liable for the loss of amenity and lower earning capacity even after the amputation. -if the first defendant commits a tort injuring the claimant and the second successive event is a natural event then the first defendant will only be liable for damages suffered up to coming of the natural event, as we can see in Jubling v Associated Dairies Ltd (1982). The claimant worked for a company and injuring his back claimed damages. Later on he became unable to work anymore because of his back problem, but not because of the injury he had in past working for the defendants, but because his late genetic disease. Here, the eggshell skull rule operated to the benefit of the defendant and the claimant lost the case. Establishing the remoteness of damage is strongly influenced by policy considerations and the courts attempts to draw a line as to the defendants liability. Remoteness is designed as a further limit on a cause of action to ensure that the liability to pay damages is fairly placed on the defendant. With the help of case law few rules have been set: - a person is responsible only for consequences that could reasonably have been anticipated: The Wagon Mound (1961)-the tanker negligently split oil into the harbour, then the wind and tide drove it towards claimants wharf and sparks from welding set on fire the cotton waste in the oil. The court decided that the fire wasnt a foreseeable harm from the spillage. - The defendant will be responsible for the harm caused to a claimant with a weakness or predisposition to a particular injury or illness- Smith v Leech Brain & Co (1961). the claimant, while working for the defendant burned his lip with molten steel and the burnt was thepromoting agent of a cancer from which the claimant died few yers after. Factually, but for the defendants negligence the climant would not heve died ?????????? bennett - If harm is forseeable but occurs in an unforseeable way there may still be liability- Hughes v Lord Advocate (1963)- the court found that the fire, cused by children playing with torch left by the postal workers in negligenc, was certainly forseable because sewers would have methane and tht they coult have also predicted that kids might be attracted to play there. Therefore, the postal employees could still be negligent even though the accident wasnt foreseen.

If there is a second cause intervening in causation- novus actus interveniensthis may break the chain of causation in two ways: a) depending on the circumstances, an act of a third party can break the chain b) an act of the claimant himself, when he would fail to take care of his own safety(contributory negligence). Where a claimant can demonstrate all the factors of the defendants negligence, it may be possible for the defendant to escape liability by raising a defence. The Volenti defence also called voluntary assumption of risk defence is based on the principle that a person who had consented to an act being done towards them cannot complain that they should be compensated ex in Smith v Baker (1981) Contributory negligence used to be a full defence until 1945 but now it is only partial and is being provide by a statute providing that the judges can reduce the damages as they think it is just and equitable regarding claimants shared responsibility to the damages. Ex Froom v Butcher (1976) The Exclusion of Liability may be possible by using a disclaimer, whether a contract or a notice on the wall or orally. Once the negligence of the defendant established, and the defence had made a try in escaping liability, the damages owed to the claimants must be assessed. Their purpose is to put the person who has suffered injuries back in the position they would have been in if the negligent act wouldnt have occurred. Damages do this through Pecuniary damages- award directly calculated in relation to the money loss and can be: -Special damages easily calculated as they rely to money already spent for examples expenses that are after the injury and pre-trial (prescriptions, travel) -Loss of earnings ex loss of wages up to date of trial or claim future wages but qualify under general damages as they rely to future and can hardly be quantifiable. -Expenses incurred by another associated with someone in need to be cared for. Non-pecuniary damages cant be calculated in relation with money (the injury itself)- all these damages are general because are assessed in relation to other awards for that type of injury. They are calculated by the Judicial Studies Board with the RPI (retail price index) known as the Heil formula. Primary injuries - calculated on a tariff basis (ex broken leg 15,250- 21,500). Pain and suffering - damages are awarded for pain and suffering resulted from injury itself, plus future sufferings from treatment, or in the future or suffering for loss of life quality. Loss of amenity meaning anything that stops someone to enjoy life the same as they used to before the injury ( ex being able to play tennis) Fatal accidents- claimant dies, claim passing to their estate(becomes part of what is inherited). The majority of awards are in a form of a lump sum that are enough if properly managed to support the person for the rest of their life or to be able to get by.

Advising Andrew In Andrews situation a duty of care can be established because it would have been reasonable of him to foresee that the children on his boat will wonder about and should have taken extra measures of precaution, (just as Stevensons case this could have been predicted). Also, there was enough proximity between him and the children or whoever was on his boat because he was contracted by them; therefore he was even in a specialist position. As the owner of the boat it would be required of him to be knowledgeable about the way things are hazardous on a boat. There is no policy against him not having these duties and it is fair, just and reasonable to consider him old enough to make a clear judgement concerning the likelihood of danger was obvious, the children would be vulnerable and taking more precautions wouldnt have cost him too much. He has breached the duty he owed Antoine as the reasonable man test has been satisfied. He was expected to perform competently (just as you re expected to ride well the bike on the road)- he should have done his duty in a capable way. The but for test is also satisfied because, if it wouldnt have been for his negligent act of not locking the engine room, Antoine wouldnt have fell over and lose a finger. Judging by the remoteness of damages he could have reasonably anticipated what had happened with Antoine and he could have predicted the vulnerability of children; even if Antoine would have had special needs, the same principle would have applied. Even if it wouldnt have been foreseeable then the courts couldve still considered him for committing a negligent act. Therefore damages inflicted to Antoine are not too remote I trying to find defences we can look at volenti- Andrew can argue that he has shown the engine room to his passengers and they all knew where the toilet is. The contributory negligence cannot be taken into account here because Antoine is quite young and he cannot be cautious enough. The exclusion of liability may be the best option for Andrew if he can prove that he has shown them where everything is and maybe prohibited going to some places or even by placing some signs by which he would absolve himself of some guilt. If he is proven in negligence Antoine would be able to claim for: Pecuniary damages: primary injury-money award for the loss of his finger; hospital care before trial (special damages) and non-pecuniary damages (all general as

they refer to future): loss of amenity due his inability to enjoy life as he used to, inability to find in life a better paid job. Advising Helga In what it concerns Helga we can straight away establish a duty of care owed by Andrew, just as all the road users have to the other road users. He could foreseen that should anything happen to his boat or to him that would make him incapable to watch were the boat is going, he ought to have a second in command to help him out. His proximity to Helga can be easily established because he is in the same position as the road users, a category to which unarguable duty is owed. Again, like in Antoines case, there is no policy saying he would not owe a duty of care to any of the boat users on that river. It is also fair, just and foreseeable to expect from him a clear judgement given his age; the likelihood of danger- anything can happen with his boat full of children if not enough precaution was taken; the vulnerability of his passengers and also the other users of the river; also, the cost of hiring extra help for managing the boat for the day wouldnt have put him out of business. Helga would be able to prove during the trial that Andrew was in breach of duty because but for his negligent act she wouldnt have been injured and that also, the facts can speak for themselves (res ipsa loquitur). She could also use the test of the reasonable man- was it reasonable for Andrew to predict any accident involving other users of the river and what repercussions this would have implied? The damages caused by Andrew are not to remote and is responsible for the consequences that he could have reasonably foreseen, and even in a certain weakness of the claimant (Helga) is considered (she was drunk or travel sick and she was leaning over the banister). In her situation, although he didnt pay attention to where the boat was going due to distraction of a minor accident on his boat, there is no chain on causation because all has happened on the account of the same defendant. The defenses that Andrew could use might not be very helpful in proving innocent because he cannot use volenti- we dont know anything the claimant being involved in an act of agreement concerning what have happened. The contributory negligence cannot also be considered, unless she was doing something very imprudent on the edge of the boat (he can absolve himself of some guilt and damage quantity implicitly). Also, unless he might have signalized and alerted the other boats that hes having an issue therefore they must be careful, he cannot use the exclusion from liability either. The damages that Helga would require of Andrew would be firstly:

The primary injury (broken back)-calculated on a tariff basis, which is a general damage; then, as special damages, she would claim for al the care she needed prior to the trial (prescriptions, hospital bills, wheelchair)-these can be summed by using receipts. She can claim the loss of earnings prior to the trial; the loss of the 250.000 contract; her visitors parking tickets and her own hospital bills, they are all quantifyable. Also, she will claim non-pecuniary damages (general ones) which can be hagled by her lawyers. These can include: the pain and suffering nervous shock and the loss of amenity (her life would not be the same-she could not perform and enjoy fame); the lost years of her life- because of the injured back and her condition her life can be shorter; private medical treatment (special damage-proven by receipts as well); loss of future earnings-, how much she might have earned- cannot be certain but they can make an estimate.