Chapter 4. Law of Obligations: Torts

• Pages: 237-347

CHAPTER4

LAW OF OBLIGATIONS:TORTS

THE LAW OFTORTS

Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards

persons generally and its breach is redressible by an action for unliquidated damages.1 This

much-venerated definition by Winfield has not managed to quell the diculties experienced by

many writers in defining ‘tort’. Street oers a definition that states:

Tort is that branch of the civil law relating to obligations imposed by operation of law on all

natural and artificial persons. These obligations, owed by one person to another, embody norms

of conduct that arise outside contract and unjust enrichment. Tort enables the person to whom

Reproduced with the permission of CartoonStock

1 Rogers, WVH, Winfield and Jolowicz on Tort, 2002, London: Sweet& Maxwell, p4.

238 Commonwealth Caribbean BusinessLaw

the obligation is owed to pursue a remedy on his own behalf where breach of a relevant norm of

conduct infringes his interests to a degree recognized by the law as such an infringement.2

Steele acknowledges the diculties inherent in attempting to define the law of torts and

the absence of a widely accepted definition of tort but oers her own definition.3 According to

Steele, ‘Torts are ‘wrongs’. To be slightly more precise, torts are civil wrongs for which law will

provide a remedy. This remedy will be enforceable against one party, to the benefit of the other,

and it will reflect (and perhaps correct) the wrong committed.’4 As succinctly put by Street, what

the law of torts does is to define the obligations imposed on one member of society by his or

her fellows and to provide for compensation for harms caused by breach of such obligations.5

Just as members of the business community must honour their legal undertakings whether

written or oral, so too must they honour social undertakings that are underpinned by the prin-

ciples of tortious liability. What is being upheld is the social contract that creates obligations to

each other and to the wider community. The law of torts defines the obligations imposed on

one member of society to his or her fellows and provides for compensation for harms caused

by breach of such obligations.

NEGLIGENCE-GENERATEDTORTS

The tort of negligence is one of the main platforms of liability within the business community

in terms of its interaction with the wider society and its own employees, servants and/or agents.

There are four basic components that must be present for the successful presentation of an

action founded on negligence.

General principles of negligence

The concept ofduty

The notion of duty examines whether the law acknowledges the possibility of tortious liability

in a given situation. Duty helpsto:

demarcate the range of people, relationships and interests that receive the protection of the law

from the eects of negligently inflicted har m. Thus, even where the defendant’s carelessness can

be shown to have caused damage to the claimant, the law may nevertheless not acknowledge the

existence of a ‘duty situation’, thereby refusing to impose liability.6

The emerging law had its genesis in the 1932 decision of Donoghue v Stevenson, where Lord

Atkin, in the House of Lords, made the now famous pronouncements on the duty concept.

Lord Atkin cast the duty concept within the framework of the ‘neighbour principle’ and man-

dated that one should take reasonable care to avoid acts or omissions which can be reasonably

foreseen as likely to injure one’s neighbour. This then led to his response to the consequential

question, who, in law, is one’s neighbour? Lord Atkin firmly answered this question by asserting

that one’s neighbour includes persons who are so closely and directly aected by one’s act that

2 Murphy, J, Street on Torts, 2012, Oxford: Oxford University Press, p4.

3 Steele, J, Tort Law: Text, Cases and Materials, 2007, Oxford: Oxford University Press, p3.

4 Steele, Tort Law, p3.

5 Murphy, Street on Torts, p4.

6 Deakin, S, Johnston, Aand Markesinis, B, Markesinis and Deakin’s Tort Law, 2007, Oxford: Oxford University

Press, p116.

239Chapter4: Law of Obligations: Torts

one ought to reasonably have them in contemplation as being so aected when directing one’s

mind to the acts or omissions which are called in question and under examination by thelaw.

Donoghue v Stevenson [1932] AC 562 (GB)

Facts: On August26 1928, the Appellant drank a bottle of ginger beer, manufactured by

the Respondent, which a friend had bought from a retailer and given to her. The bottle

contained the decomposed remains of a snail which were not, and could not be, detected

until the greater part of the contents of the bottle had been consumed. As a result she

alleged, and at that stage her allegations were accepted as true, that she suered from shock

and severe gastroenteritis. She accordingly instituted the proceedings against the manufac-

turer which gave rise to this appeal. The foundation of her case was that the Respondent,

as the manufacturer of an article intended for consumption and contained in a receptacle

which prevented inspection, owed a duty to her as consumer of the article to take care that

there was no noxious element in the goods, that he neglected such duty and was conse-

quently liable for any damage caused by such neglect.

Held: LordAtkin

At present Icontent myself with pointing out that in English law there must be, and is,

some general conception of relations giving rise to a duty of care, of which the particular

cases found in the books are but instances. The liability for negligence, whether you style it

such or treat it as in other systems as a species of ‘culpa’, is no doubt based upon a general

public sentiment of moral wrongdoing for which the oender must pay. But acts or omis-

sions which any moral code would censure cannot in a practical world be treated so as to

give a right to every person injured by them to demand relief. In this way rules of law arise

which limit the range of complainants and the extent of their remedy. The rule that you

are to love your neighbour becomes in law, you must not injure your neighbour; and the

lawyer’s question, Who is my neighbour?, receives a restricted reply. You must take reason-

able care to avoid acts or omissions which you can reasonably foresee would be likely to

injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons

who are so closely and directly aected by my act that Iought reasonably to have them in

contemplation as being so aected when Iam directing my mind to the acts or omissions

which are called in question ... There will no doubt arise cases where it will be dicult to

determine whether the contemplated relationship is so close that the duty arises.

The law has now evolved somewhat and the test to determine the presence of a duty of care

is somewhat more complicated. In assessing liability for a harm sustained by a plainti, it is

necessary to consider the matter not only by inquiring about foreseeability but also by consid-

ering the nature of the relationship between the parties (proximity) and to be satisfied that in

all the circumstances it is fair, just and reasonable to impose a duty of care. These elements

are not to be looked at as mutually exclusive but must be analysed within the context of their

interrelationship.

Marc Rich& Co. AG v Bishop Rock Marine Co. Limited [1996] AC 211 (GB)

Facts: Aship was on a loaded voyage from South America to Italy when a crack appeared

in her hull. Further cracks developed when she was anchored o Puerto Rico. Asurveyor,

called in by the master, recommended permanent repairs, at which the owners baulked.

Temporary repairs were made and the ship sailed. The temporary repairs broke down and