Tortious Liability: Principles, Cases and Defences

Introduction

Tortious liability deals with civil wrongs that cause harm to a person or property. It differs from criminal law, which addresses offences against the state. A claimant usually needs to show four things: a duty of care, a breach of that duty, causation (both factual and legal), and loss or damage. Where those elements are present, the defendant may be liable to pay damages or face other remedies such as injunctions.

This guide focuses on negligence (the most common tort), vicarious liability (when someone is responsible for another’s tort), standard defences, and selected scenarios including misrepresentation, trespass to goods, and duties relating to third-party acts. Key authorities such as Donoghue v Stevenson, Nettleship v Weston, The Wagon Mound (No 1), and Various Claimants v Catholic Child Welfare Society feature throughout, with practical steps for applying the law.

What You'll Learn

• The core elements of negligence: duty, breach, causation and damage
• How the neighbour principle and Caparo approach shape duties of care
• The objective standard of care and how courts assess breach
• Factual causation, remoteness and the type of damage test
• Vicarious liability: relationships akin to employment and the close connection test
• Common defences: contributory negligence, volenti, and self-defence
• When duties arise for third-party acts and in negligent misstatement
• How to apply case law methodically to problem questions and practice

Core Concepts

Elements of Negligence

Negligence requires proof of:

• Duty of care

  • Foreseeability of harm and proximity between claimant and defendant are central.
  • Courts often use the three-stage approach from Caparo v Dickman [1990] 2 AC 605: foreseeability, proximity, and whether imposing a duty is fair, just and reasonable.
  • Donoghue v Stevenson [1932] AC 562 introduced the neighbour principle, extending duties beyond contractual links.

• Breach of duty

  • The standard is objective: did the defendant fall below the standard of a reasonably competent person in that role?
  • Nettleship v Weston [1971] 2 QB 691 confirms that a learner driver is judged by the standard of a reasonably competent driver.
  • Factors the court may weigh include the likelihood of harm, seriousness of potential injury, precautions available, and common practice.

• Damage

  • The claimant must show recognised loss (for example, physical injury, property damage, or recognised psychiatric harm).
  • Pure economic loss is generally not recoverable in negligence unless a recognised exception applies (such as negligent misstatement with assumption of responsibility).

Causation and Remoteness

• Factual causation

  • The usual test is the “but for” test: would the harm have occurred but for the defendant’s breach?
  • Where there are multiple potential causes, courts may consider whether the breach made a material contribution to the harm.

• Legal causation (remoteness)

  • Loss must be of a foreseeable kind. In Overseas Tankship (UK) Ltd v Morts Dock (The Wagon Mound) (No 1) [1961] AC 388, only damage that is a reasonably foreseeable type is recoverable.
  • The thin skull rule applies once the type of injury is foreseeable: the defendant takes the claimant as found.

Vicarious Liability

Vicarious liability holds one person or organisation liable for another’s tort where:

• Relationship

  • The relationship is employment or akin to employment. Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 confirms that a non-contractual relationship can still qualify if it is sufficiently close to employment.

• Connection with the tort

  • There must be a close connection between the tort and the role assigned to the wrongdoer.
  • The test may be met even for intentional torts (for example, assaults) if the wrongful act is closely connected with the field of activities. See Gravil v Carroll [2008] EWCA Civ 689 (club liability for player’s on-field assault).

• Other points

  • Vicarious liability can exist despite personal immunity of the employee: Broom v Morgan [1953] 1 QB 597.
  • Some agents may access the principal’s contractual protections in tort, depending on the terms and context (see discussion in Elder Dempster v Paterson Zochonis).

Defences

• Contributory negligence

  • If the claimant’s own lack of care contributed to the damage, their damages can be reduced by a just and equitable percentage under the Law Reform (Contributory Negligence) Act 1945.
  • Note: contributory negligence generally does not reduce damages for pure breach of contract (see Barclays Bank Ltd v Fairclough Building Ltd [1994] 3 WLR 1057).

• Voluntary assumption of risk (volenti)

  • The defendant must show the claimant knew the nature and extent of the risk and agreed to accept it. Mere knowledge is not enough. Nettleship v Weston confirms that volenti will rarely succeed in road traffic cases involving passengers.

• Self-defence

  • Permits reasonable force to meet an imminent threat. In Ashley v Chief Constable of Sussex Police [2008] UKHL 25, the House of Lords stated the defendant must prove self-defence on the balance of probabilities.

• Breaking the chain of causation

  • A deliberate act of a third party, an unforeseeable natural event, or highly unreasonable conduct by the claimant may break the chain, depending on foreseeability and fairness.

Other Torts and Special Situations

• Negligent misstatement and assumption of responsibility

  • A duty may arise where the defendant undertakes responsibility for a statement and the claimant reasonably relies on it (the Hedley Byrne principle).
  • Robinson v PE Jones Ltd [2011] 3 WLR 815 shows that such responsibility is less likely in non-professional, purely contractual settings.
  • Customs and Excise Commissioners v Barclays Bank [2007] UKHL 28 confirms that the Caparo approach remains key, and that an assumption of responsibility will not lightly be found without clear undertaking or reliance.

• Misrepresentation (tort and contract crossover)

  • False statements that induce a contract can support rescission and damages.
  • Statements of opinion are usually not actionable (Bisset v Wilkinson [1927] AC 177), but a statement presented as opinion by someone with relevant knowledge may be treated as fact (Smith v Land & House Property Corp (1884) 28 Ch D 7).

• Trespass to goods and conversion

  • Interference with goods can amount to trespass or conversion. White v Withers LLP [2009] EWCA Civ 1122 confirms that unauthorised handling or copying of documents can lead to liability.

• Duties relating to third-party acts and control

  • A duty can arise where the defendant has control over a third party who causes harm. Home Office v Dorset Yacht Co [1970] AC 1004 is the leading example.

• Occupiers and institutions

  • Authorities responsible for premises and those present may owe a duty to take reasonable care. Reffel v Surrey County Council [1964] 1 All ER 743 illustrates duties in a school context.

Key Examples or Case Studies

• Donoghue v Stevenson [1932] AC 562

  • Key point: The neighbour principle. Manufacturers owe a duty to end users they can reasonably foresee will be affected.

• Nettleship v Weston [1971] 2 QB 691

  • Key point: Objective standard of care applies even to learners. The volenti defence failed as the passenger had not agreed to waive rights.

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

  • Key point: Remoteness focuses on whether the type of harm was reasonably foreseeable, not the extent.

• Various Claimants v Catholic Child Welfare Society [2012] UKSC 56

  • Key point: Vicarious liability can apply to relationships akin to employment and where the relationship materially increases the risk of the tort.

• Gravil v Carroll [2008] EWCA Civ 689

  • Key point: A sports club was vicariously liable for an on-field assault closely connected with the player’s role.

• Home Office v Dorset Yacht Co [1970] AC 1004

  • Key point: Duty can arise for third-party acts where the defendant had control and the risk of harm was foreseeable.

• White v Withers LLP [2009] EWCA Civ 1122

  • Key point: Unauthorised use or copying of another’s documents may constitute trespass to goods and conversion.

• Customs and Excise Commissioners v Barclays Bank [2007] UKHL 28

  • Key point: No duty found absent assumption of responsibility; Caparo’s three-stage approach applied to a bank’s handling of a freezing order.

• Robinson v PE Jones Ltd [2011] 3 WLR 815

  • Key point: No assumption of responsibility by a builder in a non-professional, contractual relationship; pure economic loss not recoverable in negligence on the facts.

• Bisset v Wilkinson [1927] AC 177 and Smith v Land & House Property Corp (1884) 28 Ch D 7

  • Key point: Opinion is generally non-actionable, but an opinion from someone with special knowledge may be treated as a statement of fact.

• Broom v Morgan [1953] 1 QB 597

  • Key point: Employer’s vicarious liability can exist even where the employee has personal immunity from suit.

• Reffel v Surrey County Council [1964] 1 All ER 743

  • Key point: Educational authorities can be liable for reasonably foreseeable risks affecting those on school premises.

• Barclays Bank Ltd v Fairclough Building Ltd [1994] 3 WLR 1057

  • Key point: Contributory negligence does not generally reduce damages for a pure breach of contract.

Practical Applications

• Analysing a negligence claim

  • Identify duty: Use Donoghue/Caparo. Consider foreseeability, proximity, and whether recognising a duty is fair, just and reasonable.
  • Assess breach: Compare the defendant’s conduct with the reasonable person in that role; weigh risk, gravity of harm, and practicality of precautions.
  • Prove causation: Apply the “but for” test. Consider material contribution if there are multiple causes.
  • Check remoteness: Was the type of loss foreseeable? Apply The Wagon Mound.
  • Quantify damage: Prove actual loss. Consider mitigation and contributory negligence reductions.

• Assessing vicarious liability

  • Is there an employment or akin-to-employment relationship?
  • Is the tort closely connected with the wrongdoer’s assigned activities?
  • For intentional torts, ask whether the act flowed from the role rather than being a personal frolic.

• Testing defences

  • Contributory negligence: Identify claimant fault and suggest a percentage reduction.
  • Volenti: Is there clear, informed agreement to accept the risk?
  • Self-defence: Was there an imminent threat and proportionate force? The defendant must prove it.

• Special circumstances

  • Negligent misstatement: Look for an undertaking, reliance, and reasonableness. If none, consider Caparo and policy.
  • Third-party acts: Examine control, supervision, or assumptions of responsibility for others.
  • Trespass to goods/conversion: Identify direct interference and lack of consent.

• Practice tips

  • Map facts to elements; list each element and tick off evidence for or against it.
  • Note time limits under the Limitation Act 1980.
  • For organisations, reduce risk through clear policies, training, supervision, and prompt incident review.
  • Keep records: risk assessments, training logs, and incident reports can be key in defending claims.

Summary Checklist

• Identify the tort: negligence, vicarious liability, trespass to goods, or misrepresentation
• Duty of care: apply Donoghue and Caparo (foreseeability, proximity, fair, just and reasonable)
• Breach: objective standard; consider risk, gravity of harm, and precautions
• Causation: “but for” and any material contribution issues
• Remoteness: foreseeable type of loss (The Wagon Mound)
• Damage: recognised loss and any thin skull considerations
• Vicarious liability: relationship akin to employment and close connection
• Defences: contributory negligence, volenti, self-defence, and any break in the chain
• Special cases: negligent misstatement, third-party acts, trespass to goods, misrepresentation
• Remedies and quantum: damages, injunctions, and any reductions

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