Tortious Liability arises from breaching of duty
primarily fixed by the law. This duty is towards persons
generally and its breach is redressable by an action for
unliquidated damages. Comment
Tortious liability is a fundamental concept in the law of
torts, which refers to the civil wrongs that cause harm or
injury to an individual or their property. The law of torts
provides a framework for determining when a person can
be held liable for the harm or injury caused to another.
Tortious liability arises from the breach of a duty primarily
fixed by the law, and this duty is towards persons generally.
The concept of tortious liability is based on the principle
that individuals have a duty to conduct themselves in a way
that does not harm others. This duty is not based on a
contractual agreement between the parties, but rather on the
general law that applies to everyone. As Winfield and
Jolowicz on Tort notes, "the law of torts is concerned with
the allocation of losses between individuals, and the
primary function of the law is to provide compensation for
those who have suffered harm or injury" (Winfield and
Jolowicz, 2018).
The duty that is breached in tortious liability is a duty
towards persons generally, rather than a specific individual.
This means that the duty is not limited to a particular person
or group, but rather applies to everyone. For example, the
duty to drive safely is a duty that is owed to all other road
users, not just to a specific individual. As Salmond on Torts
notes, "the duty is not a duty to a particular person, but a
duty to the public at large" (Salmond, 2019).
The breach of this duty is redressable by an action for
unliquidated damages. Unliquidated damages are damages
that are not predetermined or fixed, but rather are
determined by the court based on the circumstances of the
case. The purpose of unliquidated damages is to provide
compensation to the injured party for the harm or loss they
have suffered. As McGregor on Damages notes, "the
primary objective of an award of damages is to restore the
injured party to their pre-tort position, as far as money can
do so" (McGregor, 2017).
Tortious liability can arise in a variety of contexts,
including negligence, nuisance, and trespass. Negligence is
the most common tort, and it occurs when a person fails to
exercise the standard of care that a reasonable person would
have exercised in the same circumstances. Nuisance occurs
when a person's actions or omissions interfere with another
person's use or enjoyment of their property. Trespass occurs
when a person intentionally enters another person's property
without permission.
In order to establish tortious liability, the claimant must
prove that the defendant owed them a duty of care, that the
defendant breached that duty, and that the breach caused the
claimant harm or injury. The duty of care is a critical
element in establishing tortious liability, and it is
determined by considering the foreseeability of harm, the
proximity of the parties, and whether it is fair, just, and
reasonable to impose a duty.
The landmark case of Donoghue v Stevenson (1932)
established the modern concept of negligence and the duty
of care. In this case, the House of Lords held that a
manufacturer owes a duty of care to the ultimate consumer
of their product, even if the consumer is not in a contractual
relationship with the manufacturer. The court established
the "neighbor principle," which states that a person owes a
duty of care to their "neighbor," or those who are likely to
be affected by their actions.
In Caparo Industries plc v Dickman (1990), the House of
Lords further clarified the test for determining the duty of
care. The court established a three-part test, which requires
that the harm be foreseeable, that there be a relationship of
proximity between the parties, and that it be fair, just, and
reasonable to impose a duty.
In conclusion, tortious liability arises from the breach of a
duty primarily fixed by the law, and this duty is towards
persons generally. The breach of this duty is redressable by
an action for unliquidated damages. The law of torts
provides a framework for determining when a person can
be held liable for the harm or injury caused to another, and
it is an essential part of the civil justice system.
The concept of tortious liability is complex and
multifaceted, and it continues to evolve through the
decisions of the courts. As the law continues to develop, it
is likely that new areas of tortious liability will emerge, and
existing areas will be refined and clarified.
References:
Winfield and Jolowicz on Tort (2018) - 19th edition, Sweet
& Maxwell.
Salmond on Torts (2019) - 22nd edition, Sweet & Maxwell.
McGregor on Damages (2017) - 20th edition, Sweet &
Maxwell.
Donoghue v Stevenson (1932) AC 562.
Caparo Industries plc v Dickman (1990) 2 AC 605.
