Torts: Negligence, Intentional Torts and Defences
Negligence framework
For negligence, establish a duty of care, breach, causation, and damage that is not too remote. Duty questions use established categories where possible (road users, employers, occupiers, professionals). For novel cases, reason by reference to reasonable foreseeability and salient features such as coherence, autonomy, and vulnerability. Breach is assessed against the standard of the reasonable person, adjusted for children, professionals, and learners. Causation uses the 'but for' test, with statutory provisions for exceptional cases; remoteness asks whether the kind of damage was reasonably foreseeable.
Intentional torts
Know trespass to person (battery, assault, false imprisonment), trespass to land, and nuisance. Trespass is actionable per se; negligence requires proof of damage. Defences include consent, necessity, self-defence, and lawful authority. Contributory negligence reduces damages but does not defeat the claim.
Traps
- Confusing assault (apprehension of imminent contact) with battery (actual contact).
- Assuming a duty of care arises whenever harm is foreseeable; salient features can negate it.
- Overlooking statutory reforms to the breach standard and obvious risk.
- Forgetting that pure mental harm and pure economic loss have special tests.
Worked example
A shopper slips on a spill in a supermarket. Duty: occupier owes a duty to entrants. Breach: ask what a reasonable occupier would do about spillages, including inspection systems. Causation: but for the failure to inspect or warn, would the fall have occurred? Remoteness: a fractured wrist is a foreseeable kind of harm. Contributory negligence may reduce damages if the shopper was not watching where she walked.