Tort is the French word for wrong and in this context it refers to a civil wrong, in civil law this is defined when one party has an issue with another party, and the party who was subject to the grievance becomes the claimant, and the party who the claimant is trying to prove the other party also known as the defendant that they're in the wrong.
One form of tort law is negligence, negligence is when proved means that the defendant has failed to take the reasonable care as a person or a business to avoid injury or any kind of loss to the claimant, in order to proof that negligence has taken place the claimant must be able to prove that the defendant has taken the correct measures to protect the claimant within their rights, negligence is measured with the following: duty of care, breach of duty and damage.
Before a defendant can be found negligent, a form of 'duty of care' must be applied to the claimant by the defendant, in the case Donahue v Stephenson (1932), this was shown, this case involves claimant Donahue and defendant Stephenson. Donahue had ginger beer and ice cream in a cafe, the contents of the beer were unforeseeable as it was in a bottle that didn't show the contents, after drinking the beer Donahue poured the rest on her ice cream, and to her surprise a decomposed snail floated out, due to this incident Donahue faced alleged shock and suffered from severe gastro-enteritis, as there was no consumer contract between Donahue and Stephenson, the claimant couldn't claim any kind of compensation and because of this but she took the case further and as a result the neighbourhood principle was created by a judge by the name of Lord Atkin.
The neighbourhood principle was established from the bible quote "love thy neighbour", introducing the law "you must not injure your neighbour", for this test to stand two factors need to be established one of which being a reasonable foresight of harm and this is to test whether it was logically possible for the defendant to foresee the damage of the claimant and then, this leads on to whether or not the defendant and claimant have a relationship of proximity between them to make the claimant liable to sue, proximity includes the distance between the defendant and the claimant during the timeframe of the case and if the type of relationship they have makes the defendant responsible for the claimant.
The Caparo test was initially developed from the neighborhood principle, it was created to establish duty of care, the caparo test is split up into three sections: foresight, proximity and fair, just and reasonable, although the Caparo test is a result of the neighbourhood principle, it is also an extension, the case that helped develop this test is the case is the case of Caparo Industries v Dickman (1990) this case involves claimant Caparo Industries and defendant Dickman, Caparo Industries bought shares of a company in Fidelity who made a pre-tax profit of £1.3 million but it came to light that Fidelity had made a loss of £400,000 but no duty of care was owed because of the fact that Fidelity weren't even aware of Caparo's existence meaning there was no proximity.
The foresight section of the Caparo test focuses on whether it or not was foreseeable that the defendant would cause any harm to the claimant, in some cases foresight is not applicable as the defendant can't predict the future when it's so unclear and unpredictable that they could possibly cause any damage to the claimant, in the case Haley v London Electricity Board (1965) foresight was applicable, the case involves claimant Haley, a blind man and defendant London Electricity board, the incident that led to this case involves a group of workers for the company who at the time were digging a trench in the pavement, during this time they went on a break and as they didn't have the resources to fence off the work being done on the pavement they thought it would be sufficient to leave an upright shovel to warn passers by of the work that was currently still proceeding, due to this claimant Haley tripped and fell in the trench and as a result became deaf, due to it being foreseeable that a blind man would walk down the street London Electricity Board were held responsible for their actions.
The proximity is the closeness of the relationship, in special cases the duty of care can change and the final part of the caparo test is testing whether or not the defendant was being fair, just and reasonable, and a way to come to this conclusion is through the reasonable man test also known of the objective test, in the case Wells v Cooper (1954) the objective test was introduced, this case involves claimant Wells and defendant Cooper, in this case the defendant, an amuteur carpenter, fit a door handle for the claimant but it was not fitted correctly and due to this the claimant suffered injuries, the defendant was judged to be that of an amuteur carpenter, not a professional.
The fair, just and reasonable section is to work out if it is fair to deem the defendant responsible for the actions the defendant has done to the claimant, in the case Bradford Smart v West Sussex the fair, just and reasonable section was introduced, this case involves claimant Bradford Smart and defendant West, this case involves the claimant trying to due the defendant, the school as the claimants child was bullied to and from school but it was found that the school couldn't be held responsible as they only have a duty of care when the child is on the school grounds.
Once a duty of care has been established using the caparo test, next the breach of duty is tested, to see if there's been a negligent act or omissions, regarding breach of duty, the breach of duty measures the standard of care the defendant has over the clamant, a way to test this would be with a test called the objective test, this mainly questions the morals of the defendant, a way of doing this is to find out if the majority of people would make the same choices as the defendant, if the defendant acted reasonably and they pass this test, they are also not guilty of negligence in terms of breach of duty, although in certain circumstances the court can tweak this test in order to make it accurate to the case, and they can do this by looking at the special characteristics of the defendant.
Other factors taken into account are if the defendant has any special circumstances that set them aside from others in the position of duty of care, this would include any special skills or characteristics of the claimant, the seriousness of the damage and likelihood that it will affect the defendant's standard of care.
There are tests for defendants that fall into the categories of professionals, learners and young defendants, these are called special skill defendants. Defendants that are professionals will get tested to see if their standard of care is below what is expected of a professional, the Bolam test can be used on professionals in order to check that they were competent and did everything they could to protect the claimant from damages towards the claimant, in the case Bolam v Friern Hospital (1957) the bolam test was introduced, this case involves claimant Bolam and defendant Friern Hospital, in this case the claimant was having electro-compulsive therapy in order to treat his mental illness, during this the defendant, a doctor didn't gives any drugs to help relax the claimant but these drugs have a small risk of death, due to the fact that the claimant wasn't given any drugs he suffered with a serious brain fracture that can be a result of not having the drugs, it was found that the doctor shouldn't be held responsible as the doctor made a judgement based on the profession he practiced.
Defendants that are learners are held to the same standard as that of a competent person in the case Nettleship v Weston (1951), this is found, this case involves claimant Nettleship and defendant Watson, the defendant, a learner driver was taking lessons and crashed into the claimant, it was found that although the defendant was a learner driver that all learner drivers are held responsible to that of competent drivers.
Defendants that are children are held at the same standard of care as other children the same age, in the case Mullan v Richards (1988), this is found, this case involves claimant Mullen and defendant Richards, the claimant and defendant were two fifteen year old girls, they had a fight with plastic rulers and one of them snapped and went into the defendants eye causing her to suffer from blindness, it was found that the claimant should be held responsible for this as other children the same age would of also been responsible.
The claimant may have characteristics that could change the defendant's standard of care, the defendant's duty of care will be expected to be different for adults as it is for children as some kind of increase should be expected when looking after a young person, this standard of care may also be increased if the claimant is someone who cannot look after themselves.
An example of a case relating to the special characteristics of adults is the case Paris v Stepney (1951), in this case the claimant, Paris who was blind in one eye and the defendant Stepney, the factory he worked for were involved in this case, the claimant sustained an injury in the workplace as a piece of metal went in his eye causing him to suffer from blindness in the other eye, the employer was found guilty as they didn't provide safety goggles.
An example of a case relating to the special characteristics in children is the case Perry v Butlins Holiday World (1997) the claimant Perry, who was three at the time was at Butlins Holiday World, Perry cut his ear on a sharp brick wall because this unsafe brick was deemed unsafe and consistently around children the defendant was found guilty for not making it safe.
When the defendant is faced by challenges it is better so resort to taking precautions, risk of harm and the benefits to taking the risk that could cause potential harm. Taking precautions is something the defendant must do to prevent harm from coming to the claimant if this isn't taken care of they may be liable for the damages caused to the claimant, in the case Latimer v AEC (1953), this was found, the claimant slipped in the defendants factory and the factory workers had taken all the precautions to make it less dangerous and make the workers aware of the wet floor but the defendant had reason to believe that the factory should of been closed, it was found that the defendant shouldn't have to close the factory and that they put every precaution in place to prevent slipping.
Risk of harm refers to the seriousness of the damage the claimant might face in comparison to the likeness of the damage, in the case Bolton v Stone (1951), this was found, the claimant was hit by a cricket ball so she sued the cricket club but because their grounds made it nearly impossible for the hit to of occurred the likelihood of the harm was so unlikely that they couldn't have been held responsible.
The benefits of taking the risk may outweigh the risk then it is acceptable for the defendant to take the risk in the claimants best interest, in the case Watt v Hertfordshire (1954), the claimant, a fireman was expected to hold something very heavy in an emergency but no precautions were taken causing the claimant to suffer from a leg injury, it was found that the benefits of taking the risk were more important than taking the precautions as a life was at risk.
In order for a claimant to sue a defendant, there must be physical damage caused, whether it be physical injury or property damage, and then it must be proved that the defendant caused the damage and that the damage isn't remote. It must be proved that defendant caused the claimant damages by the defendant not carrying out their breach of duty, to determine this the defendant must carry out a but for test, this determines whether or not the defendant was guilty for damages caused the the defendant, although if an intervening act (Novus Actus Interveniens) occurred, an example of a case which involves an intervening act is the case of Rv White although this is a criminal case it is a good example to show this as the defendant tried to poison his Mother's milk but because she died of a heart attack and not the poison the defendant was not held liable for her death.
The defendant is not viable for the loss that is worsened so therefore the chain of causation is broken, it can be broken by a third party, oneself or a naturally occurring event, in the case Barnett v Chelsea & Kensington Hospital (1969), the claimant went to the hospital where the doctors refused to examine him but died five days later due to arsenic poisoning, the hospital wasn't held responsible as the doctor refusing to examine him did not cause his death as even if he was examined the result would have been the same.
The damage caused to a defendant can't be too remote, this can involve the thin skull rule which makes the defendant viable for whatever victim he gets, even if the victim has physical problems, in the case of Smith v Leech Brain, the defendant was negligent towards the claimants late husband causing him to burn his lip, because it contained pre-cancerous cells the clements late husband died, it was found that the defendant was viable for this as their negligence resulted in the death.
Finally the defendant can only be responsible for foreseeable damage an example of this would be in the Wagon Mound case (1961-1967), the Wagon Mound leaked oil which caused a fire to spread but because this would only happen in exceptional circumstances it was found that it was at the fault of the defendant that the oil leaked but not that the fire was caused.