The law of Tort and Negligence

A tort is a civil wrong that results in loss or harm to another. The most common tort is that of negligence. Others are assault, battery, intentional infliction of emotional distress, and false imprisonment. Also trespass to chattels, trespass to property, and conversion nuisance, occupiers liability, defamation, trespass and breach of confidence. Unlike criminal law where a wrong is against society these are wrongs against individuals. It must be distinguished from contract law where there is


To show an actionable case of negligence the following must be established

  1. The defendant must have owed a legal of care to the claimant. The test to establish whether there was a legal duty of care is whether:
  • There was a relationship of proximity between the parties, and it is fair just and reasonable to imply a duty of care
  • The injury or loss to the claimant was foreseeable as resulting from negligence
  1. There was a breach of the duty of care. A ‘reasonable man’ test will usually be applied to determine whether the behaviour of the defendant fell below the threshold of a ‘reasonably competent person with these characteristics’. This will vary depending on the nature of the defendant. Thus, if you take legal advice from a man in the pub which proves wrong you will have no cause for complaint unlike if the advice was given by a qualified lawyer.
  2. Causation or that the negligence caused the injury or loss. The question to be asked is ‘but for the actions or omission of the defendant, would the loss or harm have resulted?
  3. Damage or injury occurred. There must be some loss, damage, or injury. If not, although there may well have been negligence there will be no claim.

Remedies in tort

There are two primary remedies awarded by the courts once negligence is proved


Financial compensation to the claimant for their losses. Damages can be awarded in the following categories:

  • Nominal: where a tort has been committed but the victim has suffered no loss.
  • Contemptuous: where the claimant is successful, but the court considers that it should not have been brought and was without merit. A very small or derisory amount of damages may be ordered in such cases.
  • General: to compensate for non-economic damages such as pain and suffering and emotional distress.
  • Special: These must pleaded as part of the action with proof that the damage was in fact suffered. Examples are damage to property and medical expenses.
  • Aggravated damages: if the court decides that the tort was committed in a malicious manner, so as to harm the claimant’s character or question his dignity, then aggravated damages may be awarded.
  • Exemplary or punitive damages: these may be awarded when the court finds that the action committed by the defendant is so serious that an example needs to be made of them.


An injunction is a court order prohibiting or requiring a certain course of action to be taken. This can be in addition to an award of damages.


The following are defences to tort actions:

Vicarious liability

This is where a tort was committed by an employee while undertaking his or her duties of employment, The employee can deny liability and claim that the employer was vicariously liable.

Contributory negligence

This is a partial defence where the defendant claims that  the claimant acted so as to contribute to the injuries or loss which they have suffered.

Volenti non fit injuria

This effectively means ‘consent to the risk of injury’. It means that the claimant cannot complain about what has happened on the basis that he voluntary assumed the risk It must be proved that the Claimant acted voluntarily in full knowledge of the nature and extent of the risk involved.

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