Civil Wrongs (Tort): Elements, Types, Defences and Damages

Introduction

A civil wrong (tort) is a breach of a legal duty owed by one person to another that causes harm. Tort law deals with private claims between individuals or organisations and is distinct from criminal law, which addresses offences against the state. The claimant must prove their case on the balance of probabilities. Most claims turn on four core elements: duty of care, breach, causation, and damage. Where the claim succeeds, the court can award compensation and, in suitable cases, grant injunctions. Precise language and careful evidence are essential for consistent application of these rules.

What You'll Learn

• What a civil wrong is and how it differs from a crime
• The four core elements: duty, breach, causation, and damage
• Key torts: negligence, trespass, nuisance, defamation, strict liability (Rylands v Fletcher), and misrepresentation/negligent misstatement
• Fault-based vs strict liability concepts
• How causation and remoteness work, including common tests and case law
• Main remedies: compensatory, aggravated and exemplary damages, and injunctions
• Defences: consent, self-defence, contributory negligence, illegality, and limitation
• Practical steps for bringing or defending a tort claim, including professional negligence points

Core Concepts

Elements of a Tort Claim

• Duty of care:

  • A legal obligation to take reasonable care to avoid causing foreseeable harm.
  • General duty principles start with Donoghue v Stevenson [1932] AC 562 (the neighbour principle).
  • For novel duties, courts often use the Caparo test: foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty (Caparo Industries plc v Dickman [1990] 2 AC 605).

• Breach of duty:

  • The standard is that of the reasonable person. Factors include the magnitude of risk, likelihood of harm, practicality of precautions, and social utility of the activity.
  • Illustrative case: Bolton v Stone [1951] AC 850 (low probability of injury meant no breach).

• Causation:

  • Factual causation is commonly assessed with the “but for” test: but for the defendant’s breach, would the harm have occurred?
  • Legal causation (remoteness) restricts recovery to losses that are reasonably foreseeable.

• Damage:

  • The claimant must prove actual loss recognised by law. Some torts (for example, trespass to the person) are actionable without proof of damage, but negligence generally requires proof of harm.

Fault and Strict Liability

• Fault-based liability:

  • Negligence and many intentional torts (assault, battery, false imprisonment) require proof of fault (a breach or intentional act).

• Strict liability:

  • In Rylands v Fletcher [1868] LR 3 HL 330, a defendant who brings onto land a dangerous thing likely to cause mischief if it escapes can be liable if it escapes and causes damage, subject to limits developed in later cases (including foreseeability of damage: Cambridge Water Co v Eastern Counties Leather [1994] 2 AC 264).

Main Torts at a Glance

• Negligence:

  • Requires duty, breach, causation, and damage. Examples include careless driving or professional negligence.

• Trespass:

  • Direct interference without lawful justification.
  • Trespass to the person: assault, battery, and false imprisonment.
  • Trespass to land: entering or remaining on land without consent; interference with possession is actionable.

• Nuisance:

  • Unlawful interference with use or enjoyment of land. Private nuisance affects individuals or properties; public nuisance affects the public or a class of persons.

• Defamation:

  • A statement that causes or is likely to cause serious harm to reputation (Defamation Act 2013, s.1). Defences include truth, honest opinion, and publication on a matter of public interest.

• Strict liability (Rylands v Fletcher):

  • Liability without proof of negligence where a dangerous thing escapes from land, subject to conditions and defences.

• Misrepresentation and negligent misstatement:

  • Misrepresentation can be fraudulent (Derry v Peek [1889] 14 App Cas 337), negligent (including under Misrepresentation Act 1967 s.2(1)), or innocent.
  • Negligent misstatement in tort arises where a careless statement made in circumstances giving rise to a duty of care causes economic loss (Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465).
  • Remedies include rescission (subject to bars) and damages.

Causation and Remoteness

• Factual causation:

  • “But for” test: Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428.
  • Multiple causes: material contribution or increased risk doctrines may apply in limited scenarios (for example, Fairchild v Glenhaven Funeral Services [2002] UKHL 22).

• Intervening acts (novus actus interveniens):

  • A new, independent act may break the chain of causation if it is not a foreseeable consequence of the original breach.

• Remoteness:

  • Only reasonably foreseeable types of damage are recoverable: The Wagon Mound (No 1) [1961] AC 388.
  • Thin skull rule: the defendant must take the claimant as found; if the type of injury is foreseeable, its full extent is recoverable.

Damages and Remedies

• Compensatory damages:

  • Aim to put the claimant, as far as money can, in the position they would have been in had the wrong not occurred.
  • Special damages: quantifiable past losses (for example, earnings, medical costs).
  • General damages: pain and suffering, loss of amenity, and future losses.

• Aggravated and exemplary damages:

  • Aggravated damages compensate for injury to feelings or dignity in certain cases.
  • Exemplary (punitive) damages are rare and confined to limited categories (Rookes v Barnard [1964] AC 1129). Their use is often debated.

• Injunctions:

  • Common in trespass, nuisance, and defamation (to restrain publication), subject to free speech and proportionality considerations.

Defences and Limitation

• Consent (volenti non fit injuria):

  • A complete defence where the claimant freely agreed to the risk. Consent must be real and informed.

• Self-defence:

  • Permits reasonable force to repel an imminent attack. In tort, the belief in the need to use force must be reasonable (Ashley v Chief Constable of Sussex Police [2008] UKHL 25).

• Contributory negligence:

  • Damages may be reduced if the claimant failed to take reasonable care for their own safety (Law Reform (Contributory Negligence) Act 1945).

• Illegality (ex turpi causa):

  • Courts may refuse relief where a claim is founded on the claimant’s own serious wrongdoing. Patel v Mirza [2016] UKSC 42 adopts a policy-based approach assessing consistency with the public interest.

• Limitation:

  • Time limits apply (Limitation Act 1980): typically six years for tort, three years for personal injury and one year for defamation. Late claims risk being statute-barred.

Key Examples or Case Studies

Donoghue v Stevenson [1932] AC 562

• Context: Mrs Donoghue fell ill after consuming ginger beer containing a snail.
• Point: The “neighbour principle” sets a general duty to take reasonable care to avoid foreseeable harm to persons closely and directly affected.
• Application: Use as the starting point for duty of care analysis.

Caparo Industries plc v Dickman [1990] 2 AC 605

• Context: Investors relied on audited accounts when buying shares.
• Point: Duty requires foreseeability, proximity, and it being fair, just and reasonable to impose a duty.
• Application: Apply Caparo to new or complex duty situations.

Bolton v Stone [1951] AC 850

• Context: Cricket ball struck a passer-by outside the ground.
• Point: Breach depends on the magnitude and likelihood of risk vs burden of precautions; very low risk may mean no breach.
• Application: Use risk assessment factors to argue breach or no breach.

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428

• Context: Hospital failed to examine a patient who later died of arsenic poisoning.
• Point: “But for” causation failed; the patient would have died anyway.
• Application: Causation can defeat claims even where breach is arguable.

The Wagon Mound (No 1) [1961] AC 388

• Context: Oil spilled into a harbour and later ignited, causing damage.
• Point: Only damage of a reasonably foreseeable kind is recoverable.
• Application: Assess the type of harm, not its precise extent.

Rylands v Fletcher [1868] LR 3 HL 330 (as refined by Cambridge Water [1994])

• Context: Water escaped from a reservoir, causing damage.
• Point: Strict liability for escape of dangerous things brought onto land, subject to conditions (including foreseeability of damage).
• Application: Consider in cases involving stored chemicals, water, or other hazardous substances.

McPhail v Persons Unknown [1973] Ch 447

• Context: Landowner sought relief against unidentified trespassers.
• Point: Trespassers have no right to occupy land; injunctions can be granted against “persons unknown.”
• Application: Useful authority when seeking possession orders or injunctions swiftly.

Defamation: Bookbinder v Tebbit [1989] 1 All ER 20 and Lachaux v Independent Print Ltd [2019] UKSC 27

• Point: A specific allegation does not automatically carry a wider defamatory meaning (Bookbinder). Serious harm under s.1 Defamation Act 2013 requires proof of actual or likely serious reputational harm (Lachaux).
• Application: Plead natural and ordinary meaning carefully; always assess the serious harm threshold early.

Ashley v Chief Constable of Sussex Police [2008] UKHL 25

• Point: In tort, self-defence requires a reasonable belief in the need to use force, not merely an honest one.
• Application: Scrutinise the objective reasonableness of force used.

Patel v Mirza [2016] UKSC 42 and Henderson v Dorset Healthcare [2020] UKSC 43

• Point: Illegality is a flexible, policy-based doctrine (Patel). Claims may be barred where loss flows from the claimant’s own serious crime (Henderson).
• Application: Consider public policy and proportionality; assess whether the wrongdoing is central to the claim.

Practical Applications

• Build the claim methodically:

  • Identify the cause(s) of action and match each element to evidence: duty, breach, causation, and damage.
  • Obtain early evidence: witness statements, accident reports, medical records, photographs/CCTV, expert opinions.
  • Quantify losses: special damages schedules (earnings, care, treatment) and a reasoned approach to general damages.

• Negligence:

  • Use Donoghue/Caparo to frame duty. For breach, weigh risk vs precautions. For causation, apply “but for,” then consider material contribution only where the law permits.
  • Defences: contributory negligence, consent, limitation.

• Trespass and nuisance:

  • Seek prompt injunctions to stop continuing wrongs. Keep a detailed log of incidents (for nuisance) and consider expert noise/odour evidence where relevant.
  • Remedies may include damages for loss of amenity and injunctive relief.

• Defamation:

  • Check the s.1 “serious harm” threshold at the outset; assess truth, honest opinion, and public interest defences.
  • Consider early resolution tools such as offers of amends (Defamation Act 1996) and apologies/retractions.
  • Limitation is one year from publication; check for multiple publications and potential extensions.

• Strict liability and hazardous activities:

  • Evaluate whether the defendant accumulated something dangerous in a non-ordinary way and whether the damage was a foreseeable kind.
  • Consider defences (act of God, consent, default of the claimant) and whether statutory regimes apply.

• Misrepresentation and negligent misstatement:

  • Choose remedy: rescission (watch for bars such as affirmation, lapse of time, impossibility, or third-party rights) and/or damages (in tort or under Misrepresentation Act 1967).
  • For pure economic loss from statements, confirm a duty of care (assumption of responsibility and reasonable reliance).

• Professional negligence:

  • Check the retainer and duty scope. Identify the standard of care for the profession and whether advice or procedural steps fell below that standard.
  • Consider concurrent liability in contract and tort; limitation may differ.

• Procedural and timing points:

  • Comply with pre-action protocols; send a clear letter of claim and allow a reasonable response period.
  • Diary limitation dates: generally six years (tort), three years (personal injury), one year (defamation). Consider date of knowledge and concealment provisions.
  • Explore ADR (for example, mediation) to control costs and risks.

Summary Checklist

• Define the tort and list each element you must prove
• Identify duty using Donoghue/Caparo where relevant
• Analyse breach using risk, likelihood, and practicality of precautions
• Prove factual causation (“but for”) and check remoteness
• Quantify losses with evidence; consider future loss and mitigation
• Choose appropriate remedies: damages and/or injunctions
• Test defences: consent, self-defence, contributory negligence, illegality
• Check limitation and procedural steps under the pre-action protocols
• In defamation, confirm serious harm and consider truth/honest opinion/public interest
• For misrepresentation, consider rescission and damages routes and any bars

Quick Reference