Chapter 3: The Law of Torts
1. The scope of tort law
*tort: a wrongful act done to the person or property of another
The role of the law of torts is to compensate victims for harm suffered from the activities
of others. Punishment is left to the criminal law.
2. Development of the tort concept
The concept of causation, fault arises.
3. The basis for liability
(1) Fault: blameworthy or culpable conduct
(2) Strict liability: a defendant can be sued for strict liability even if he is not at fault.
(3) Social Policy:
--“no-fault” insurance; workers’ compensation
(4) Vicarious liability: the liability of an employer to compensate for harm caused by an
*employees often have limited assets available to pay compensation for the harm;
*the person (employer) who makes the profit from an activity should also be liable for
4. Negligence: the careless causing of injury to the person or property of another
*Anyone who carelessly causes injury to another should compensate the victim for
Elements of a negligence action:
a. The defendant owed the plaintiff a duty of care;
b. The defendant breached that standard of care
c. The defendant’s conduct caused injury to the plaintiff. (Causation) (1) Three majors:
a. Duty of care: a relationship so close that one must take reasonable steps to avoid
causing harm to the other: would a reasonable person have foreseen that those acts would
likely cause harm?
*A TWO-STEPS TEST for duty of care
Reasonable foreseeability: Would a “reasonable person” foresee that his or her actions
would have the consequences of harming the plaintiff?
Policy considerations: Are there any “policy reasons” to limit/negate liability?
(Considering potential legal risks)
*The plaintiff must establish that the defendant owed a duty of care to her.
b. Standard of care: the level of care that a person must take in the circumstances
*A “modified” reasonable person TEST : what could be expected of a reasonable
professional in this field with the same expertise and standing?
c. Causation: injury resulting from the breach of the standard of care
*”But for” test, which means that D’s act must be a necessary condition to P’s loss
*Common-sense approach: no matter how blameworthy D is, he will not be liable for
damages he did not cause. (How another person in casual chain would act.)
But a person will not be held liable for consequences of the acts that are considered to be
too remote or unrelated. (the concept of REMOTENESS)
When there are multiple Ds and each D
Negligence Act establishes a “contribution and indemnity” scheme between Ds, based on
relative degree of fault between Ds. Negligence Act establishes a “contributory
negligence” scheme between D(s) and P, based on relative degree of fault between D(s)
(2) Minors d. Remoteness of damage: the closer in time the occurrence of an injury is to a person’s
careless conduct, the less chance there is of some significant intervening act happening,
and the more likely he is to be found in the “cause” of the injury.
P must demonstrate that damages are not remote.
e. Economic loss: a sum of compensation out of the damage itself, such as wages lost due
to time off from work, the cost of renting a replacement car…
f. Burden of proof: res ipsa loquitur: the facts speak for themselves. The defendant will
be found liable unless he produces evidence to satisfy the court that he was not at fault.
g. Contributory negligence (the plaintiff’s own conduct): the plaintiff has to apportion
part of the damages.
h. The relevance of insurance
For an action in negligence to succeed, it is necessary for the plaintiff to show not
only that a duty of care was owed to her and that duty has been breached, but also
she has been injured as a result of the breach.
5. Product liability
CASE #1 Donoghue v. Stevenson 酒瓶里有蜗牛——General principles——it created
the modern concept of negligence by setting out general principles whereby one person
owe another a duty of care——it was reasonably foreseeable that failure to ensure the
product’s safety would lead to harm of consumers.
Donoghue v Stevenson  UKHL 100,  SC (HL) 31,  AC 562 is a foundational
case for Scots delict law andEnglish tort law by the House of Lords. It created the modern
concept of negligence, by setting out GENERAL PRINCIPLES whereby one person
would owe another person a duty of care.
Also known as the "Paisley snail" or "snail in the bottle" case, the facts involved Mrs
Donoghue drinking a bottle of ginger beer in a cafe in Paisley, Renfrewshire. A snail was in the
bottle. She fell ill, and she sued the ginger beer manufacturer, Mr Stevenson. The House of Lords
held that the manufacturer owed a duty of care to her, which was breached, because it was
reasonably foreseeable that failure to ensure the product's safety would lead to harm of
Duty to warn: to make users aware of the risks associated with the use of the product .
Manufacturers must warn consumers about dangerous properties of their product
Warnings must be explicit and specific – degree of specificity increases as danger increases Warnings must be communicated clearly and understandably (language; size of print should not
be too small)
The plaintiff must satisfy the court that had a proper warning been given, she would not have
acted in the way she did. That means the failure to warn must have been a cause of the injury.
Limits to what items require warnings; Contributory negligence defence
6. Occupier’s liability
Invitee: a person permitted by an occupier to enter premises for business purposes.
Licensee: a visitor (other than an invitee) who enters premises with the consent of the occupier.
Trespasser: a person who enters premises without the permission of the occupier.
The elements of basic negligence are:
• A duty of care is owed
• Standard of care is breached
• Injury is caused
The elements have been refined to address common situations:
• Product liability
• Defective products causing injury
• Dangerous products t