Contract Liability

GENERAL TORTUOUS LIABILITY AND CONTRACT

TO CONTRACT LIABILITY
1.1 INTRODUCTION
A tort is a legal wrong. Tort law is a branch of the civil law; the other main branches are
contract and property law. Whereas in criminal law the plaintiff is always the state and
the defendant, if found guilty of a crime, is punished by the state, in civil law the dispute
is typically between private parties. In the case of torts, the plaintiff is the victim of an
alleged wrong and the unsuccessful defendant is either directed by the court to pay
damages to the plaintiff or else to desist from the wrongful activity. Examples include
intentional torts such as defamation, and invasion of privacy and unintentional torts such
as negligence.
Generally tort refers to private and civil offenses for which law may provide monetary
compensation to the aggrieved party as a remedy. Some torts such as assault, however,
are crimes. Whereas breach of a contract does not ordinarily fall under tort law, negligent
driving by a taxi driver is a breach of contract to carry the passenger safely to his or her
destination. In the case of tort, it usually must be shown that the wrong was committed
with intention or negligence, however tort of strict liability does not require any such
proof. The common legal relief for a tort is monetary compensation. In some cases, such
as nuisance to a neighbour an injunction to prevent recurrence of the act may be granted.

1.2 DEFINITION OF TORT

The term tort is the French equivalent of the English word ‘wrong' and of the Roman law
term ‘delict'. The word tort is derived from the Latin word tortum which means twisted or
crooked or wrong and is in contrast to the word rectum which means straight. Everyone is
expected to behave in a straightforward manner and when one deviates from this straight
path into crooked ways he has committed a tort. Hence tort is a conduct which is twisted
or crooked and not straight. As a technical term of English law, tort has acquired a special
meaning as a species of civil injury or wrong. It was introduced into the English law by
the Norman jurists.
Tort now means a breach of some duty independent of contract giving rise to a civil cause
of action and for which compensation is recoverable. In spite of various attempts an
entirely satisfactory definition of tort still awaits its master. In general terms, a tort may
be defined as a civil wrong independent of contract for which the appropriate remedy is
an action for unliquidated damages.
According to Winfield and Jolowicz, tortuous liability arises from the breach of a duty
primarily fixed by law; this duty is towards persons generally and its breach is redressible
by an action for unliquidated damages.
According to Salmond and Hueston, a tort is a civil wrong for which the remedy is a
common action for unliquidated damages, and which is not exclusively the breach of a
contract or the breach of a trust or other mere equitable obligation.
However, according to Sir Frederick Pollock, every tort is an act or omission (not being
merely the breach of a duty arising out of a personal relation, or undertaken by contract)
which is related in one of the following ways to harm (including reference with an
absolute right, whether there be measurable actual damage or not), suffered by a
determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the agent
to cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which
causes harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or
property), and treated as wrongful without regard to the actor's intention or knowledge.
This, as we have seen is an artificial extension of the general conceptions which are
common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or omitting to
act did not intend to cause, but might and should with due diligence have foreseen and
prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the
party was bound absolutely or within limits, to avoid or prevent.

1.3 NATURE OF GENERAL TORTUOUS LIABILITY

COMPARING AND CONTRACT TO CONTRACTUAL
LIABILITY
Strict liability is a legal doctrine that holds a person responsible for the damages or loss
caused by his or her acts or omissions. This doctrine holds a person liability regardless of
culpability. Strict liability is important to tort law, particularly in product liability
lawsuits. It is also important for corporation law and criminal law.
In torts, strict liability is the doctrine that imposes liability on a party or person without a
finding of fault. A finding of fault would be negligence or tortious intent. The plaintiff
needs to prove only that the tort happened and that the defendant was responsible. Strict
liability is imposed for legal infractions that are malum prohibitum rather than malum in
se. Malum prohibitum means that an act is wrong because it violates a statute. Malum in
se means that an act is wrong because it is evil in and of itself. Because the act was
prohibited by statute, neither good faith nor the fact that a defendant took as many
precautions as possible are valid defenses. Strict liability frequently applies to those who
were engaged in a hazardous or inherently dangerous venture.
Strict liability typically applies to hazardous activities (like construction), animal owners,
and product manufacturers. For example, a product manufacturer is strictly liable for any
injury caused by a defective product regardless of the care taken to prevent injury or the
absence of intentional wrongdoing or negligence. Anyone involved in the manufacturing
of a product may be held liable for damages caused by the defective product if the injury
or harm occurred while a consumer was using the product in a reasonably foreseeable
way—even if the product was not being used for its intended purpose.
Another example of how strict liability comes into play is dog bites. No matter how many
precautions a dog owner takes to train his or her dog or keep his or her dog away from
other people, the owner is strictly liable if the animal bites another human being.
The purpose of strict liability is to discourage reckless behavior, careless product
development and manufacturing, and negligent animal control. By holding people strictly
liable for actions that are inherently dangerous, damage caused by animals, and products
developed for consumers, people and companies are more likely to take extreme care to
prevent damages or injury.
Although the laws of tort and contract both deal with obligations, it is possible to
distinguish between them on the basis that in the case of a contract the parties are
voluntarily assuming obligations whereas tortious liability is compulsorily imposed by
law. Thus, for example in respect of the “general” tort of negligence, the law imposes an
obligation not to breach the duty of care as defined in the leading case of Donoghue v
[Link] definition given by P.H. Winfield clearly brings about the distinction
between tort and contract. It says, Tortuous liability arises from the breach of a duty
primarily fixed by law; this duty is towards persons generally and its breach is repressible
by an action for unliquidated damages. A contract is that species of agreement whereby a
legal obligation is constituted and defined between the parties to it. It is a legal
relationship, the nature, content and consequence of which are determined and defined by
the agreement between the parties. Like the law of torts, contract law is concerned with
civil obligations. However, unlike tort law, the law of contract is largely concerned with
the enforcement of duties that one person has by agreement, bound himself or herself to
perform for the benefit of another. Even though the law of torts is also concerned with
breaches of duties, those duties are not established by any agreement between persons but
rather by the law itself.
In some cases, a breach of contract may also constitute a tort. However not every breach
of a contractual obligation is also a tort. According to Salmond, a contract arises out of
the exercise of the autonomous legislative authority entrusted by the law to private
persons to declare and define the nature of mutual rights and obligations.
At the present day, tort and contract are distinguished from one another in that, the duties
in the former are primarily fixed by law while in the latter they are fixed by the parties
themselves. Agreement is the basis for all contractual obligations. “People cannot create
tortious liability by agreement. Thus I am under a duty not to assault you, not to slander
you, not to trespass upon your land because the law says that I am under such duty and
not because I have agreed with you to undertake such duty.
Some of the distinctions between tort and contract are given below:
1) A tort is inflicted against or without consent; a contract is founded upon consent.
2) In tort no privity is needed, but it is necessarily implied in a contract.
3) A tort is a violation in rem (right vested in some person and available against the world
at large.); a breach of contract is an infringement of a right in personam( right available
against some determinate person or body).
4) Motive is often taken into consideration in tort, but it is immaterial in a breach of
contract.
5) In tort the measure of damages is not strictly limited nor is it capable of being indicated
with precision; in a breach of contract the measure of damages is generally more or less
nearly determined by the stipulations of the parties.
In certain cases the same incident may give rise to liability both in contract and in tort.
For example, when a passenger whilst traveling with a ticket is injured owing to the
negligence of the railway company, the company is liable for a wrong which is both a tort
and a breach of a contract.
The contractual duty may be owed to one person and the duty independent of that
contract to another. The surgeon who is called by a father to operate his daughter owes a
contractual duty to the father to take care. If he fails in that duty he is also liable for a tort
against the daughter. In Austin v. G.W. Railway, a woman and her child were traveling in
the defendant's train and the child was injured by defendant's negligence. The child was
held entitled to recover damages, for it had been accepted as passenger.
There is a well established doctrine of Privity of Contract under which no one except the
parties to it can sue for a breach of it. Formerly it was thought that this principle of law of
contract also prevented any action being brought under tortuous liability. But this fallacy
was exploded by the House of Lords in the celebrated case of Donoghue v. Stevenson. In
that case a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle of
dark glass. The bottle, unknown to anyone, contained the decomposed remains of a snail
which had found its way to the bottle at the factory. X purchased the bottle from the
retailer and treated the plaintiff, a lady friend (the ultimate consumer), to its contents. In
consequence partly of what she saw and partly of what she had drunk, she became very
ill. She sued the manufacturer for negligence. This was, of course, no contractual duty on
the part of the manufacturer towards her, but a majority of the House of Lords held that
he owed a duty to take care that the bottle did not contain noxious matter and that he was
liable if that duty was broken.
The judicial committee of the Privy Council affirmed the principle of Donoghue's case in
Grant v. Australian Knitting Mills Ltd. Thus contractual liability is completely irrelevant
to the existence of liability in tort. The same facts may give rise to both.
Another discrepancy between contracts and torts is seen in the nature of damages under
each. In contracts the plaintiff will be claiming liquidated damages whereas in torts he
will be claiming unliquidated damages. When a person has filed a suit or put a claim for
the recovery of a predetermined and fixed sum of money he is said to have claimed
liquidated damages. On the other hand when he has filed a suit for the realization of such
amount as the court in its discretion may award, he is deemed to have claimed
unliquidated damages. There is more freedom in contractual law where as in tortuous
liability it is more of imposed nature. The claimant will receive compensation for
damages and expected earnings in the case of contract liability where as the claimant can
only claim damages as in the case of tortuous liability. There is more privacy in the
contract in the case of contractual liabilities as the parties who are involved in the contract
are the one who can actually sue for damages as in the case of ATKIN V
SOUNDERS(1942) whereas in tortuous liabilities any one as a third party who had
suffered losses or damages can claim compensation from the defendant.

1.4 CASE EXAMPLE

Case example: Dick Bentley Productions Ltd v Harold Smith
(Motors) Ltd.
The case concerned a misrepresentation as to the mileage of a car. The plaintiffs claimed
and were awarded damages for breach of contract. The difficulty with this decision is that
the statement was made before the conclusion of the contract and it is by no means
certain that it became a term of the contract. Salmon LJ somewhat disingenuously argued
that the representation, although not a term of the contract, became in effect a collateral
contract. Markesinis & Deakin comment that contract theory was here advancing into the
pre-contract stage achieving results almost identical to those of a negligence action.

Case example: Donoghue v. Stevenson

In that case a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle of
dark glass. The bottle, unknown to anyone, contained the decomposed remains of a snail
which had found its way to the bottle at the factory. X purchased the bottle from the
retailer and treated the plaintiff, a lady friend (the ultimate consumer), to its contents. In
consequence partly of what she saw and partly of what she had drunk, she became very
ill. She sued the manufacturer for negligence. This was, of course, no contractual duty on
the part of the manufacturer towards her, but a majority of the House of Lords held that
he owed a duty to take care that the bottle did not contain noxious matter and that he was
liable if that duty was broken.

Case example: Ashby v. White

The plaintiff was wrongfully prevented from exercising his vote by the defendants,
returning officers in parliamentary election. The candidate fro whom the plaintiff wanted
to give his vote had come out successful in the election. Still the plaintiff brought an
action claiming damages against the defendants for maliciously preventing him from
exercising his statutory right of voting in that election. The plaintiff was allowed damages
by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff.

Case example: Saif Ali v Sydney Mitchell & Co

Although public policy requires that a barrister should be immune from suit for
negligence in respect of his acts of omissions in the conduct and management of litigation
which causes damage to his client, such immunity is an exception to the principle that a
professional person who holds himself out as qualified to practise that profession is under
a duty to use reasonable care and skill and is not to be given any wider application than is
absolutely necessary in the interests of the administration of justice. Accordingly, a
barrister's immunity from suit extends only to those matters of pre-trial work which are so
intimately connected with the conduct of the cause in court that they can fairly be said to
be preliminary decisions affecting the way that cause is conducted when it comes to a
hearing. Where a barrister's advice and settling of the pleadings in fact prevents plaintiff's
cause from coming to court as it should have done, it cannot be said to be intimately
connected with the conduct of plaintiff's cause in court and is therefore not within the
sphere of a barrister's immunity from suit for negligence.

Case example: Caparo Industries plc v Dickman

Following their take-over of a company, the respondents brought an action against the
company's auditors, alleging that the company's accounts were inaccurate and misleading.
The respondents contended that the auditors had been negligent in auditing the accounts,
that the take-over bid had been made on the basis of the audited accounts, and that the
auditors owed them a duty of care either as potential bidders or as existing shareholders.
It was held that the auditors owed the respondents a duty of care as shareholders although
not as potential investors. The auditors appealed and the respondents cross-appealed
against the decision that they could not claim as potential investors: Held the auditor of a
public company's accounts owed no duty of care to members of the public who were
potential investors. To do so would give rise to unlimited liability on the part of the
auditor. Nor was a duty of care owed to individual shareholders in the company who
wished to buy more shares, since individual shareholders were in no better position than
members of the public at large. The auditor's statutory duty to prepare accounts was owed
to the body of shareholders as a whole to enable them to exercise informed control of the
company, and not to enable them to buy shares with a view to profit. Accordingly, the
appeal would be allowed and the cross-appeal dismissed.

Case example: Haley v London Electricity Board

Appellant, a blind man, while walking along a pavement in a residential area in
Woolwich on his way to work (as he had done for six years) tripped over an obstacle
placed by servants of London Electricity Board near the end of a trench which they were
excavating in the pavement under statutory authority; appellant fell and was injured. The
obstacle, a punner hammer some five feet long, was resting across the pavement, with its
handle at one end two feet above the ground on railings on the inside of the pavement,
while the other end lay on the pavement about a foot from the outer edge, so that the
hammer was at an angle of thirty degrees to the pavement. It had been placed there by the
board's servants to protect pedestrians from the trench and to deflect them into the road.
Appellant was alone and had approached with reasonable care, waving his white stick in
front of him to detect objects in his way and also feeling the railings with it, but the stick
missed the hammer and his leg caught it about four and a half inches above his ankle
causing him to be catapulted over onto the pavement. The hammer gave adequate
warning of the trench for normally sighted persons. In an action for damages on the
ground of the board's negligence there was evidence that about one in five hundred
people were blind; that in Woolwich there were 258 registered blind; that the Post Office
took account of the blind in guarding their excavations, using for the purpose a light fence
some two feet high, and that more than once appellant had detected such fences with his
stick: Held the duty of care owed by persons excavating a highway, in guarding the
excavation made by them, extended to all persons whose use of the highway was
reasonably likely and thus reasonably foreseeable, not excluding the blind or infirm, and
the use of a city pavement such as this by a blind person was reasonably foreseeable; on
the facts, the punner hammer was not an adequate or sufficient warning for a blind person
who was taking the usual precautions by use of his stick and accordingly appellant was
entitled to recover damages at common law for negligence.

Case example: Hodge & Sons v Anglo-American Oil Co

The law seems to be (1) if a barge which has carried petrol is an article dangerous in
itself, it is the duty of the owners to take proper and reasonable precautions to prevent its
doing damage to people likely to come in contact with it. These precautions may be
fulfilled by entrusting it to a competent person with reasonable warning of its dangerous
character, if that danger is not obvious. If such precautions are not taken, the owner will
be liable to third persons with whom he has no contract for damage done by the barge,
which they could not have avoided with reasonable care; (2) if the barge which has
carried petrol is not dangerous in itself, but becomes dangerous because it has been
insufficiently cleaned, and the owner is ignorant of the danger, the owner is not liable for
damage caused by it to persons with whom he has no contract; (3) in the case of a thing
dangerous in itself, where either the danger is obvious or the owner has given proper
warning to the person entrusted with it, not being his servant, the owner is not liable for
negligence of such person causing injury to a third party; such negligence is nova causa
interveniens (Scrutton, LJ).

Case example: McLaren v British Columbia Institute of

Technology
A teacher brought an action for wrongful dismissal. He sought to include a claim that his
former employer and fellow employees had caused his dismissal, in that their negligent
acts had induced the breach of his contract of employment. A number of incidents had
taken place whilst the teacher was employed at the college, which he claimed had
undermined his standing as a teacher. These included the questioning of his teaching
ability in front of the students, the rebelling of students which, he claimed, was
encouraged by the other teachers and the making of statements by the teachers which, he
alleged, were reckless and negligent. Furthermore the college was negligent in that it had
failed to recognise the situation and take steps to prevent it from affecting the teacher's
ability to continue teaching: Held there was no right of action for negligence inducing
breach of contract and the categories of negligence should not be extended to include
such a right. The parties to a contract were free to impose any rights and obligations they
wished on each other, but if there existed a right of action in negligence for inducing
breach of contract, the parties could impose a limitless variety of duties of care on third
parties. The amendments sought would therefore be refused.

Case example: Thake v Maurice

A husband and wife who had a healthy baby after the husband had undergone a
vasectomy were awarded damages for breach of contract against the surgeon who
performed the operation. On appeal by the surgeon, held, Kerr LJ dissenting on the issue
of liability in contract, (i) although both parties to the contract expected that sterility
would be the result of the operation, a reasonable person might not necessarily have taken
that to mean that the surgeon was giving a binding promise that the operation would
achieve its purpose. Therefore, the surgeon was not liable in contract for the revival of the
husband's fertility. (ii) However, in contracting to perform a vasectomy operation the
surgeon was subject to the duty implied by law to carry it out with reasonable skill and
care. His failure to give his usual warning before the operation of the possibility of a
natural reversal of the operation was in breach of his contractual duty of care amounting
to negligence. It should have been within his reasonable contemplation that by failing to
warn the husband there was a risk that the wife would not appreciate her pregnancy at a
sufficiently early stage to enable her to have an abortion if she wished. Accordingly,
although not liable in contract, the surgeon was liable in tort.

Case example: Thompson v Bradford

The claimant, H, was born on 1 November 1997. On 29 December, H was taken to the
clinic for an eight week check up and for immunisation. The health visitor found a hard
inflamed area on the anal edge. Without examining H, a doctor prescribed antibiotic
cream. The parents asked about whether they should proceed with the immunisation and
the health visitor indicated they should. The parents then took H to the practice nurse who
was to undertake the immunisation. The parents explained that he had a boil and that he
had had a previous spot on his buttock, which had cleared and faded away. The nurse
asked the defendant general practitioner to examine H. He asked questions designed to
elicit whether H was systemically unwell in accordance with the guidance given to GPs,
in order to determine whether there were any contradistinctions to immunisation. The
guidance suggested that minor infections without fever or systemic upset were not
reasons to postpone immunisation. The defendant did not go into the question whether the
immunisation should be postponed nor did he explain that H's presentation of a recurring
perianal abscess was unusual and that he might require surgery. H was vaccinated. By 1
January 1998, the abscess became much larger and more inflamed. He was taken to a
hospital where a surgeon, having been told of the vaccination, lanced the boil and then
packed the wound. On 8 January, H developed a high temperature and was eventually
diagnosed as having contracted polio subsequently confirmed as vaccine strain of polio
(VAPP). He brought proceedings, by his father and litigation friend. The judge held that
the advice to proceed with the immunisation was proper advice, but he went on to hold
that there were certain matters about which the doctor should have informed the parents
in relation to which 'fault' was established. He further held that although no doctor could
have foreseen that the lancing of the boil might provide a greater potential for H
contracting polio than existed in any case where a baby was vaccinated, factually it was
the boil via which polio had been contracted. On that basis he ruled that the defendant
was liable in damages for the injury flowing from the contracting of polio from the
vaccine. The defendant appealed against the finding of liability. H cross appealed against
the finding that the defendant was not negligent to advise that immunisation could
proceed

Case example: A v Essex County Council

The claimants, a married couple, were prospective adoptive parents. The defendant
authority was the relevant adoption agency pursuant to the Adoption Act 1976. The
adoption panel recommended two children, a brother and sister, for adoption. The male
child had serious behavioural and emotional problems. The claimants agreed to have the
children placed with them. They alleged that they found the male child impossible to
control, to such an extent that he damaged their home, health and family life. At the end
of the placement, the claimants went on to adopt both children. The claimants sought
damages from the authority, arguing, inter alia, that it had been negligent in that its social
workers who had dealt with the adoption had failed to inform them of the extent of the
male child's difficulties of which they had known, and that had the claimants been
properly informed, they would not have agreed to the placement. The authority denied
that it owed the claimants a duty of care, and that if it did, that it had been negligent. Only
liability was at issue.
Held - A person exercising a particular skill or profession might owe a duty of care in its
performance to those who might foreseeably be injured if its skill was exercised
carelessly. It was plain that a child with serious behavioural problems, particularly one
displaying violence towards property and people, was foreseeably likely to cause injury.
Moreover, there was sufficient proximity between prospective adoptive parents and the
social workers dealing with the adoption. In the circumstances, it was reasonable to
impose a duty of care, since it was in the public interest that professionals and those with
special skills who were paid to offer their skills to the public, should act to the appropriate
standard. It followed that the social workers who had dealt with the adoption had owed
the claimants a duty of care, and the authority was vicariously liable for any breaches
established. On the evidence, the social workers had failed to provide the claimants with
all the relevant information of which they knew, and as such had acted in breach of duty.
Had the claimants been aware of that information, they would not have taken the
placement and therefore causation had been established for loss suffered during the
placement. However, during the placement, the claimants came to know the substance of
the information that they had not been given previously, and as a result, any loss suffered
by them after the adoption was not caused by the authority's negligence. Accordingly,
judgment was given for the claimants.

Case example: Ashton v Turner

Three men spent an evening drinking together. Two of them then committed a burglary
and attempted to escape in a car belonging to the third man. While doing so they were
involved in an accident in which one of them, the passenger, was injured. He brought an
action in negligence against the driver and against the car owner, on the ground that he
had permitted the driver to use the car: Held in certain circumstances, as a matter of
public policy, the law might not recognise that a duty of care was owed by one participant
in a crime to another in relation to an act done in the course of the commission of the
crime. On the facts, the defendants did not owe a duty of care to the plaintiff during the
burglary or while trying to escape. Alternatively, in the circumstances of the present case
of burglars who had been drinking and were fleeing in a getaway car, the defendants were
entitled to rely on the maxim volenti non fit injuria.

Case example: Asiansky Television plc v Bayer Rosin

The defendant solicitors acted for the claimants in connection with the purchase of a
development site for £1.4 million. The site was affected by implemented compulsory
purchase orders (CPOs), under which the Department of Transport enjoyed rights
extending over a significant area of the site. The claimant issued proceedings in
professional negligence in respect of advice given by the defendants. At trial, Hunt J
dismissed the claim save for an award of nominal damages (see [2002] All ER (D) 371
(Dec)). The claimants appealed successfully against that decision (see [2003] All ER (D)
133 (Nov)), the Court of Appeal finding that there had been a breach of duty by the
defendants, in particular as regarded the advice given as to the effect of the implemented
CPOs on the title. A re-trial was ordered to determine whether the breach of duty had
been causative of any loss suffered by the [Link] claimants argued, inter alia, that
they should have been informed that an implemented CPO represented a serious blot on
title, and that if so advised they would not have proceeded with the purchase of the site.
The defendants contended, inter alia, that given proper legal advice, the claimants would
still have gone ahead, or would have gone ahead but negotiated a price reduction for so
doing, since they were keen to acquire the site.
Held - On the evidence, the claimants should have been properly advised, inter alia, as to
the effect of the implemented CPOs. They had been keen to purchase the site and, had
they been properly advised, would have continued with the purchase having negotiated a
reduction in the price in the sum of £300,000.

Case example: Bates v Parker

Plaintiff was employed by defendant as an independent contractor to clean the windows
of his hairdressing shop every fortnight. When cleaning a window with three panels, in
order to steady himself, he had made a practice of putting his hand through a hole in a
piece of plywood in the middle panel, which was bolted to the sides of the window.
Defendant had seen him cleaning the window, but was not found to have known that he
used the plywood in this way. A few days before the windows were due to be cleaned
defendant intending to glaze the space occupied by the plywood, unbolted it and cut a
piece of glass to fit the space, but, being temporarily unable to obtain putty, replaced the
plywood in the panel without bolting it. When plaintiff, while next cleaning the window,
took hold of the panel, it moved and he fell and was injured. In an action by plaintiff for
damages for negligence against defendant, the judge held that defendant knew of the
unusual danger due to the alteration of the plywood and held him liable. On appeal: Held
an independent contractor employed to do work on premises decides how he will do the
work and what safeguards he shall take and must satisfy himself as to the safety or
condition of that part of the premises in which he is to work; the danger from the plywood
was an ordinary danger to plaintiff and not an unusual danger of which defendant knew or
ought to have known, since, although he knew of the alteration, he did not know it had
created danger for plaintiff, and he could not be deemed to have that knowledge from
merely seeing plaintiff cleaning the window; and, therefore, defendant was not liable.

Case example: Bradford-Smart v West Sussex County

Council
The claimant complained that she had been bullied by fellow pupils both at school and on
the way to and from school. She commenced proceedings against the defendant, which
maintained and was responsible for the school, claiming damages for psychiatric injury
and consequent loss. The judge found that the claimant had not been bullied at school, but
that she had been bullied on the way to and from school, to the school's knowledge. The
judge held that if a school knew that a pupil was being bullied at home and on the way to
and from school, it would not be practical, let alone just and reasonable, to impose upon it
a greater duty than to take reasonable steps to prevent that bullying spilling over into
school, ie to take effective defensive measures; and that if a school chose to be proactive,
that was a matter of discretion rather than obligation. He accordingly dismissed the claim.
The claimant appealed on the ground, inter alia, that the judge had applied too restrictive
a test in determining the scope of the school's duty of care towards its pupils
Held - The appeal would be [Link] judge had erred in the very restricted way in
which he had expressed the duty owed by the school. Whilst in general there was no duty
to prevent one person deliberately causing harm to another, there were exceptions in
which such a duty could be imposed on someone who was in control of the person who
caused the harm. A head teacher was entitled to use his disciplinary powers against a
pupil who attacked another boy outside school, and there might be circumstances in
which failure to exercise those powers would be a breach of the school's duty of care to
another pupil. Such circumstances would be few and far between, but where an incident
between pupils outside school carried over into school a reasonable head teacher should
investigate whether it had had a deleterious effect upon the victim. In the instant case
there were no adverse effects upon the claimant's educational performance and
development which could be clearly attributed to the bullying, and it was clear that a
responsible body of professional opinion would have agreed that enough had been done
by the school to protect the claimant from bullying inside the school. In those
circumstances, had the judge directed himself less restrictively on the law, he would
nevertheless have reached the same conclusion

Case example: Caltex Oil (Australia) Pty Ltd v Dredge

Willemstad
An underwater pipeline owned by AOR carried petroleum products from AOR's refinery,
on the southern shore of Botany Bay, to Caltex's Banksmeadow oil terminal, on the
northern shore. In October 1971, the pipeline was broken by the dredge Willemstad,
while it was deepening a shipping channel in the bay. The operators of the dredge had
been aware of the pipeline, and caused the damage by their negligent navigation. At the
time, the dredge was equipped with navigation aids installed by Decca, which included a
track plotter chart incorrectly showing the safe area for dredging. By their processing
agreement, Caltex supplied crude oil to the refinery for processing by AOR, who
delivered the refined products to Caltex at Banksmeadow terminal through the pipeline.
Caltex retained notional ownership in its crude oil being refined, and owned the products
actually passing to it through the pipeline. However, under the agreement the risk of
damage or loss to the products rested with AOR until they reached the terminal. In
actions brought by AOR in the Supreme Court of NSW against the dredge and Decca, the
trial judge found each of them liable for damages assessed at $125,000 which included
the damage to the pipeline and the products it had contained. Caltex also brought actions
against the dredge and Decca for damages, agreed at $95,000, being the costs of
arranging alternative means of transporting petroleum products until the pipeline was
repaired. The trial judge held that these damages were not recoverable, since they were
economic losses unrelated to any injury to the property of Caltex. Caltex also appealed to
the High Court from this decision. On the appeal, Decca supported the judgment in its
favour by arguing that there was no evidence that its negligence caused the damage to the
pipeline: Held (1) there was no reason for departing from the conclusion drawn by the
trial judge that the Decca navigation system was in operation and relied upon by those in
charge of the dredge when the pipeline was damaged. Further although the negligent
navigation of the dredge by conventional means was one cause of the damage, it did not
break the chain of causation from the defect in the Decca system, which remained fully
operative as one of two different acts of negligence, both causing the damage sued for;
(2) in all the circumstances, both the dredge and Decca owed a duty to Caltex to take
reasonable care to avoid causing damage to the pipeline and thereby causing economic
loss to Caltex. The damages claimed by Caltex were fully recoverable.

Case example: Clare v L Whittaker & Son (London) Ltd

An independent contractor was engaged by a firm of roofers to lay a roof on an extension.
The firm had been engaged by another company who were the main contractors for the
building. The independent contractor did not use the crawling boards provided, he fell
and was killed. His widow claimed damages for breach of the Construction (Working
Places) Regulations 1966 and for negligence under the Occupiers' Liability Act 1957:
Held (i) the building regulations did not place any duty on a main or sub-contractor
towards a self-employed worker; (ii) the main contractors, as occupiers of the roof, had
fulfilled their duty of care within the Occupiers' Liability Act 1957 by providing crawling
boards, they were under no duty to ensure that the boards were used; the firm of roofers
was not in occupation of the roof and, therefore, owed no duty under the Occupiers'
Liability Act 1957. The widow's claim would be dismissed.

Case example: Daniels v Thompson

The claimant was the son of the deceased, the executor of her estate, and the sole
beneficiary. In 1989 the deceased decided to attempt to reduce her estate's potential
liability to inheritance tax. To that end she retained the defendant solicitor in July 1989 to
give her estate tax planning advice. The defendant recommended that she should transfer
one of the properties which she owned and resided in to the claimant as a gift. He further
advised that she take out an insurance policy to protect her estate against the risk of a
liability to inheritance tax in the event that she died within 7 years of the transfer. The
mother accepted the advice and the defendant prepared a deed of gift which was executed
on 9 August 1989. He did not advise her that if she continued to reside at the property
otherwise than for valuable consideration she would at her death be deemed to have had
an interest in possession in the property, which consequently would be deemed to form
part of her estate for inheritance tax assessment. The deceased continued to live in the
property rent-free until her death on 17 March 1998. On her death the Inland Revenue
treated the property as part of her state on the basis that there had been a reservation of
benefit within the meaning on s 102 of the Finance Act 1986. As a result it was taxed at
£30,[Link] claimant, in his capacity as executor of the estate, claimed, inter alia, for
damages for breach of the duty of care owed by the defendant to the deceased. The claim
form was issued in May 2002. The defendant contended that the claim was time-barred
by the Limitation Act 1980. On the preliminary issue as to the date on which the
claimant's cause of action had accrued and on what date the primary limitation expired,
the judge ruled that the claim was time-barred. He found that, inter alia, the cause of
action in tort had arisen in August 1989, and therefore the 6-year limitation period had
passed. The claimant appealed against the [Link] claimant contended that the estate
had not suffered any loss until the date of the deceased's death because liability for tax
only arose because of her death and the alleged negligence.
Held - The appeal would be [Link] the assumption that the deceased had had a
claim in negligence during her lifetime, it had to have arisen at the time when she relied
on the defendant's advice. Time therefore would have started to run from that point which
accordingly resulted in the claimant's claim 

Case example: Dike v Rickman

The claimant worked for the second defendant company as a self-employed independent
financial adviser. The first defendant was, at material times, a director of and a
shareholder in the second defendant. In 2003, the claimant made an application for an
appointment with another company, SJP. In response, SJP offered the claimant a position
subject to references. SJP then sent the second defendant a standard form of
questionnaire, which was completed by the first defendant. The claimant was not,
eventually, offered a position with SJP. The claimant issued proceedings alleging that, the
first defendant in breach of contract and negligently, and the second defendant
negligently, had provided a reference which was wrong and misleading. In particular, it
was said that the general thrust of the reference was very disparaging to the claimant.
Held - On the evidence, every statement in the reference to which exception was taken
was true. Although the reference was not a favourable reference, the claimant's case was
somewhat overstated. It followed that the claim that the second defendant had acted in
breach of contract and negligently in giving the reference in the terms in which it was
given would be dismissed. Even assuming that the first defendant had personally owed
the claimant a duty of care, an issue which was not determined, the first defendant was
not in breach of any such duty.

Case example: Edwards v Lee

The plaintiff, a seller of a luxury car, was approached by a man who offered to sell it to a
third party and to pay an agreed price within 28 days. The plaintiff agreed to this on
condition a solicitor's letter of reference was obtained. The seller allowed the car to be
driven away despite not being given a reference, together with the vehicle documents. A
day or so later, the plaintiff had misgivings and the man told him that his solicitor would
reassure him. Thereafter, the plaintiff telephoned the defendant, a senior partner in a firm
of solicitors, who told the plaintiff that his client was reliable, knowing at the time that he
was on bail awaiting trial for 13 counts of criminal deception and offences of dishonesty,
which involved dealing with cars. The plaintiff was reassured and did not try to repossess
the car. When it was sold, below the agreed price, the plaintiff did not receive any of the
sale moneys, and claimed damages against the defendant for negligence in giving false,
misleading and negligent assurances about his client's integrity: Held the defendant could
not be held liable for what he said to the plaintiff unless a special relationship existed
between them as defined in Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465.
On the facts this relationship did exist because the defendant was aware of the contract
between the parties and he also knew it was likely that the plaintiff would rely on the
information he provided. Furthermore, the disciplinary rules binding solicitors provided
that the public were entitled to expect that a solicitor who was asked for a reference
would reply with candour and honesty. The defendant could not give a favourable
reference without revealing the criminal charges, which he could not do without his
client's permission. The defendant, accordingly, acted negligently by giving the plaintiff
the unqualified favourable reference he gave, but the plaintiff was guilty of contributory
negligence and therefore the relative blameworthiness was assessed at fifty-fifty.

Case example: Edwards v Railway Executive

While on a railway company's property, a boy aged nine years was run over by an electric
train and injured. The railway line was laid on an embankment at the foot of and adjacent
to which was situated a public recreation ground. Between the foot of the embankment
and the recreation ground the company had erected a fence consisting of concrete posts
between which ran strands of wire fixed to the posts by split pins. For many years
children had been accustomed to climb through the fence by pulling out the split pins and
removing the wire, and to toboggan down the embankment. The fence was repaired by
the company's servants whenever it was seen to have been interfered with. The accident
occurred when the boy, looking for a ball which had been propelled on to the
embankment, went through an opening in the fence, climbed the embankment, and, while
crossing the line, slipped and fell between the rails and was run over. Until the day of the
accident the boy had never been through the fence and on the embankment, and he had
been warned by his father not to go through the fence. He had no knowledge of the
practice of other boys' sliding down the embankment, and had not wanted to do so
himself. In an action by the boy and his father against respondents for negligence: Held to
establish that the boy was on the embankment as a licensee, the onus was on those
claiming it to show, either express permission by the railway company or that the
company had so conducted itself that it could not be heard to say that it did not assent to
the use of the premises by children; a licence was not to be lightly inferred, and the onus
was not discharged by showing that, in spite of the fence, children constantly broke
through; even assuming that the company had knowledge of the intrusion, that of itself
did not constitute the children licensees, nor was the company bound to take every
possible step to keep out intruders, but so long as it took some steps to show that it
resented and would try to prevent the intrusion that was strong evidence to rebut the
inference of a licence; in this connection it was material to consider the state of mind of
the boy and whether in the circumstances he thought that he was on the premises with the
leave of the company, on the facts there was no evidence from which it could reasonably
be inferred that the railway company acquiesced in the use of the embankment by the
children; and therefore, the boy was a trespasser, and, as such, the company did not owe
him the duty which they would have owed to a licensee.

Case example: Evans v Triplex Safety Glass Co Ltd

Plaintiff bought a motor car fitted with a 'Triplex Toughened Safety Glass' windscreen of
defendants' manufacture. When the car was being used, about a year after the date of
purchase, the windscreen suddenly and for no apparent reason broke into many fragments
and injured the occupants of the car: Held in these circumstances the manufacturers were
not liable in damages, for the following reasons: the lapse of time between the purchase
of the car and the occurrence of the accident; the possibility that the glass might have
been strained when screwed into its frame; the opportunity for examination by the
intermediate seller; and the breaking of the glass might have been caused by something
other than a defect in manufacture.

Case example: Garcia v St Mary's National Health Service

Trust
In October 2000, the claimant patient was transferred to the defendant's hospital in order
to undergo a coronary artery bypass graft procedure. The surgery was successful and the
claimant was placed in a recovery room. Around eight hours after the surgery had
concluded the claimant coughed during extubation, suddenly lost consciousness and his
blood pressure rapidly fell. The on-call cardiothoracic consultant was alerted and 36
minutes later the claimant's chest was reopened. It was found that there was acute internal
bleeding from the point at which the graft joined the artery and the ligature clip which
had been placed there had become dislodged. A new ligature clip was fitted and the
bleeding was controlled. As a result of the post-operative haemorrhage and hypertension
a hypoxic brain injury had been caused which caused the claimant brain damage. The
claimant issued proceedings against the defendant for damages. A split trial was ordered
and liability and causation fell to be determined at the instant hearing. Issues arose as to:
(i) whether the ligature clip, the failure of which had caused the relevant bleeding, had
been correctly applied; and (ii) whether the defendant had failed to ensure that systems
were in place to ensure that the bleeding would be arrested timeously and brain damage
would be avoided.
Held - On the evidence, the ligature clip had been correctly applied and its failure had
been caused by an internal physiological event subsequent to the completion of the
surgery. Moreover, the defendant had taken reasonable steps in its duty of care to the
claimant and the time taken and systems in place were adequate to meet that duty despite
the unfavourable outcome for the claimant. Accordingly, the defendant had not acted
negligently.

Case example: Group B Plaintiffs v Medical Research

Council
The plaintiffs were all handicapped by dwarfism. As children, they had been selected for
treatment by clinicians at growth centres. They were injected with a drug that was capable
of infecting them with Creutzfeldt-Jakob Disease ('CJD'). The Department of Health was
found to have been negligent in allowing the patients to receive the drug treatment. It fell
to be determined (1) whether the duty owed to the plaintiffs was to avoid the risk of
psychiatric as well as physical illness; (2) whether psychiatric illness could, as a matter of
law, be held to have been caused by the defendant's negligence and (3) whether damages
for such psychiatric injury were recoverable as a matter of law. Held, the plaintiffs all
sustained psychiatric illnesses from the fear of knowing that they could develop CJD. The
negligent act of the defendant was a causative factor of their illness. The relationship
between the parties was one of close proximity, akin to that of doctor and patient.
Because the plaintiffs were participating in a specialised therapeutic trial, it was
reasonably foreseeable that the news of the potential risk of CJD would reach the
plaintiffs from sources wider than the people treating them, such as a sensationalist media
or emotional friends and relatives. It was not surprising, then, that a person of normal
fortitude would suffer psychiatric illness and this should have been reasonably
foreseeable by the defendant. There was no reason why the plaintiffs could not recover
damages for psychiatric injury if they could prove that it was caused by the process of
becoming gradually aware of their possible fate. Delay between the shock of the news of
the first cases of CJD and the onset of psychiatric injury should not defeat the plaintiffs'
claim. Considerations of public policy, including social and economic policy
considerations, did not exclude the plaintiffs from compensation.

1.5 CONCLUSION
Thus to conclude, law of torts is a branch of law which resembles most of the other
branches in certain aspects, but is essentially different from them in other respects.
Although there are differences in opinion among the different jurists regarding the
liability in torts, the law has been developed and has made firm roots in the legal
showground. There are well defined elements and conditions of liability in tort law.
Modern tort law strives to prevent unjustified harm to innocent victims. Tort law enables
private citizens to use the legal system to resolve disputes in which one party claims that
the other has acted improperly, resulting in harm. The system compels the tortfeasor to
compensate the injured party for his or her losses. This accountability is crucial to our
legal sense of fair play and equity. People should be held responsible for their actions,
especially when they wreak havoc on others. Redress should be available for innocent
victims of carelessness, recklessness, or intentional injury. This bough of law enables the
citizens of a state to claim redressal for the minor or major damage caused to them.