Tort & Damages: Liability & Compensation

Introduction

Tort law deals with civil wrongs where one person causes harm to another through action or omission. It is separate from criminal law: claims are brought by individuals or organisations, and the court’s main remedy is a money award known as damages.

Most claims turn on a few recurring questions: did the defendant owe a duty, was that duty breached, did the breach cause the harm, and was the harm reasonably foreseeable (rather than too remote)? Two common torts featured here are negligence (carelessness causing loss) and battery (intentional, direct contact without consent). Damages aim, as far as money can, to put the claimant back in the position they would have been in but for the wrong.

What You’ll Learn

• The elements of negligence: duty of care, breach, causation, and remoteness
• How the Caparo test refines when a duty of care arises
• Battery: directness, intention to touch, and the role of consent
• Types of damages: special, general, nominal, aggravated, exemplary, and contemptuous
• Key cases: Donoghue v Stevenson, Caparo v Dickman, Wagon Mound, Hughes v Lord Advocate, Collins v Wilcock, Appleton v Garrett, Rookes v Barnard, Smith v Leech Brain
• Practical steps for analysing claims and quantifying loss

Core Concepts

Negligence: Duty, Breach, Causation, Remoteness

Negligence is about failing to take reasonable care, leading to foreseeable harm.

• Duty of care

  • General principle from Donoghue v Stevenson [1932] AC 562: take reasonable care to avoid acts or omissions likely to injure your “neighbours” (those foreseeably affected by your conduct).
  • Caparo Industries plc v Dickman [1990] 2 AC 605: three-stage approach for novel situations—foreseeability of harm, proximity between parties, and whether it is fair, just and reasonable to impose a duty.
  • Duties commonly arise in everyday settings such as driving, medical treatment, and building work.

• Breach of duty

  • Objective standard: the reasonable person in the circumstances; for professionals, the standard of a reasonably competent practitioner in that field.
  • Factors include the magnitude of risk, the seriousness of potential harm, the cost and practicality of precautions, and the social utility of the activity.
  • A builder ignoring safety codes or a doctor overlooking obvious symptoms may fall below the required standard.

• Causation

  • Factual causation: the classic “but for” test—would the harm have occurred but for the breach?
  • Multiple causes: courts may accept material contribution or loss of chance in limited categories; causation must be based on evidence, not speculation.

• Remoteness and foreseeability

  • The Wagon Mound (No 1) [1961] AC 388: only damage of a type that is reasonably foreseeable is recoverable.
  • The Wagon Mound (No 2) [1967] 1 AC 617: a small but foreseeable risk can still result in liability.
  • Hughes v Lord Advocate [1963] AC 837: the precise sequence of events need not be foreseeable; it is enough that the kind of damage is foreseeable.
  • Thin skull rule (Smith v Leech Brain [1962] 2 QB 405): you take your victim as you find them—once the kind of harm is foreseeable, the full extent is recoverable even if the claimant is unusually susceptible.

Illustrations

• A doctor who carelessly fails to diagnose a condition causing deterioration may be liable in negligence.
• A contractor who ignores building regulations may be liable for defects and resulting loss.

Battery: Intentional Direct Contact Without Consent

Battery is the intentional and direct application of force to another without lawful justification. It protects bodily autonomy.

• Elements

  • Direct act: physical contact or interference (touching, pushing, striking, or using an object).
  • Intention to touch: intention relates to the contact, not necessarily to causing harm. Accidental contact is not battery.
  • Absence of consent: consent must be real and cover the specific act. Everyday jostling in crowds is tolerated; more than that needs consent or lawful authority.

• Consent and medical treatment

  • Consent must align with the procedure performed; performing a different procedure without consent can be battery.
  • Honest, broad consent to treatment usually shifts disputes to negligence rather than battery where issues concern information or technique.
  • Example scenarios: a clinician operating without consent; a door supervisor using unnecessary force.

• Defences

  • Consent, necessity, lawful authority, and self-defence may justify contact if used reasonably.

Damages: Types and Principles

Damages compensate for loss caused by the tort.

• Compensatory damages

  • Special damages: quantifiable past losses (medical expenses, repairs, lost earnings).
  • General damages: non-pecuniary losses (pain, suffering, and loss of amenity; future care and earnings). Courts use prior cases and guidelines to assess amounts.

• Other awards

  • Nominal damages: a small sum where a tort is proved but no significant loss is shown (common in trespass).
  • Aggravated damages: compensate for additional injury to feelings or dignity caused by the defendant’s manner or motive (often in intentional torts).
  • Exemplary (punitive) damages: exceptional; punish and deter—in Rookes v Barnard [1964] AC 1129 limited to three categories (oppressive actions by public officers; where statute allows; profitable wrongdoing).
  • Contemptuous damages: a token sum where a legal wrong exists but the court considers the claim should not have been brought.

• Cross-cutting points

  • Mitigation: claimants must take reasonable steps to reduce their loss.
  • Contributory negligence (Law Reform (Contributory Negligence) Act 1945): damages may be reduced where the claimant’s own carelessness contributed to the harm.
  • Causation and remoteness: the same principles that establish liability also shape the recoverable measure of loss.

Key Examples or Case Studies

Donoghue v Stevenson [1932] AC 562

• Context: A consumer fell ill after finding a snail in a bottle of ginger beer.
• Point: Established a general duty of care to those foreseeably affected by one’s acts or omissions.
• Use: Starting point for duty in negligence where no established category applies.

Caparo Industries plc v Dickman [1990] 2 AC 605

• Context: Investors sued auditors for losses after relying on audited accounts.
• Point: For new duty situations, ask foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty.
• Use: Limits open-ended expansion of duty, especially in pure economic loss claims.

The Wagon Mound (No 1) [1961] AC 388 and (No 2) [1967] 1 AC 617

• Context: Oil spillage caused fire damage in Sydney harbour.
• Point: Only foreseeable types of damage are recoverable; even a small foreseeable risk can attract liability.
• Use: Core authority on remoteness and risk assessment.

Hughes v Lord Advocate [1963] AC 837

• Context: Boy injured by explosion from a paraffin lamp left at roadworks.
• Point: The precise mechanism need not be foreseeable if the type of harm is.
• Use: Supports liability where the general class of injury is predictable.

Smith v Leech Brain & Co Ltd [1962] 2 QB 405

• Context: Burn triggered cancer in a worker with a pre-existing condition.
• Point: Thin skull rule—defendant is liable for the full extent of injury once the kind of harm is foreseeable.
• Use: Damages are not limited by the claimant’s vulnerability.

Collins v Wilcock [1984] 1 WLR 1172

• Context: Police officer took hold of a woman’s arm without arrest or justification.
• Point: Battery is intentional touching without lawful justification; everyday contact is acceptable, but more is not.
• Use: Defines the limit between acceptable contact and tortious interference.

Appleton v Garrett [1996] (CA)

• Context: Dentist performed extensive, unnecessary work without proper consent.
• Point: Treatment without real consent can amount to battery.
• Use: Highlights the need for valid consent in clinical practice.

Rookes v Barnard [1964] AC 1129

• Context: Union pressure led to dismissal; exemplary damages considered.
• Point: Exemplary damages are confined to narrow categories.
• Use: Sets the boundaries for punitive awards in tort.

Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 and Smith New Court Securities Ltd v Scrimgeour Vickers [1997] AC 254

• Context: Damages for deceit (fraudulent misrepresentation).
• Point: All losses flowing directly from the deceit are recoverable; not limited by foreseeability.
• Use: Shows the broader measure of damages in fraud, distinct from negligence.

Addis v Gramophone Co Ltd [1909] AC 488 (contrast with contract)

• Context: Wrongful dismissal and claim for injured feelings.
• Point: No damages for injured feelings in a contract claim.
• Use: Contrasts tort recovery with limits in contract.

Practical Applications

• Analysing a negligence claim

  • Identify a recognised duty or apply Caparo to a novel situation.
  • Define the standard of care and gather evidence of breach (policies, expert opinion, compliance with codes).
  • Prove causation: use the “but for” test; consider alternative causes and any material contribution arguments.
  • Test remoteness: was the kind of harm foreseeable? Apply Wagon Mound and Hughes.
  • Consider defences: contributory negligence, consent (volenti), statutory defences.

• Handling a battery allegation

  • Check for a direct, intentional touching and whether real consent existed.
  • In medical settings, ensure consent matches the actual procedure; document discussions and material risks.
  • Consider lawful authority, necessity, and proportional self-defence where relevant.

• Building a schedule of loss

  • Special damages: collate receipts, invoices, payslips, and medical bills; set out past losses clearly and chronologically.
  • General damages: refer to the Judicial College Guidelines and comparable cases; obtain medical reports for prognosis and future needs.
  • Future loss: consider care, equipment, and earning capacity; use appropriate methodology and expert input.

• Managing risk and preventing claims

  • Keep robust records: consent forms, risk assessments, method statements, and incident logs.
  • Train staff on safety protocols and proportionate use of force.
  • Maintain insurance cover appropriate to your activities (public liability, professional indemnity).

• Settlement pointers

  • Assess strengths on duty, breach, causation, and remoteness before offers.
  • Be realistic about contributory negligence reductions and mitigation.
  • Consider structured settlements for significant future loss cases.

Summary Checklist

• Can you state the duty of care and, if novel, apply Caparo?
• Have you identified the standard of care and the facts showing breach?
• Does factual causation hold on a “but for” basis or other accepted approach?
• Is the type of damage reasonably foreseeable and not too remote?
• For battery, is there intentional, direct contact without valid consent or lawful justification?
• Have you classified damages: special vs general; nominal, aggravated, exemplary, or contemptuous?
• Have you addressed mitigation and any contributory negligence?
• Are your case references ready: Donoghue, Caparo, Wagon Mound, Hughes, Collins v Wilcock, Appleton, Rookes, Smith v Leech Brain?

Quick Reference