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GRADUATE DIPLOMA in LAW 2020/21 Tort Introductory Reading

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GRADUATE DIPLOMA in LAW 2020/21 Tort Introductory Reading GRADUATE DIPLOMA IN LAW 2020/21 Tort Introductory Reading WHAT IS TORT? Tort is said to be about conflict of interests which lead to the infliction of losses. These conflicts may take many different forms. It is important to be able to identify what a tort is and to be able to identify which different torts may apply to different situations. Set out below are definitions of different torts OF TORT LAW followed by short scenarios. You should read the definitions and then think about whether any of the torts apply to any of the scenarios. Definitions NEGLIGENCE: A claim in negligence requires an injured party to establish that the defendant owed him a duty of care to protect him from the kind of harm suffered, that he was in breach of that duty, and that it was the defendant’s breach of duty which was found to be the cause of the claimant’s loss. PRIVATE NUISANCE: Unreasonable interference with a person’s use or enjoyment of land or some right over or in connection with it. ASSAULT: Any act of the defendant which directly and either intentionally or negligently causes the claimant immediately to apprehend a contact with his person. In all these and many other situations the law of tort governs the question of whether the injured party, the claimant (formerly, ‘the plaintiff’), may sue the party responsible for the injury, the defendant, to recover compensation for his loss, and, if so, how. Primarily, therefore, the law of tort is concerned with the provision of a remedy to persons who have been harmed by the conduct of others. Essentially, ‘tort’ is a collection of civil wrongs. The word derives from the Medieval Latin term “tortum” meaning “wrong” or “injustice”. Scenarios - what do you think of these scenarios? While driving his car Edgar is carved up by Freda, who is driving a large lorry. Edgar shakes his fist at Freda, and leans out of the window of his car to shout that he will swing for her. Freda laughs and drives away. Edgar drives in pursuit. Mandy was driving her car home one night, when a tyre punctured as a result of an invisible structural defect in its wall. She attempted to change the wheel, but without success. Nick, a passing motorist, saw her plight and offered his assistance. He changed the wheel but forgot to tighten the wheel-nuts. As a result the wheel came off soon afterwards, the car crashed and Mandy was injured. Raisa is the proprietress of the "Tap'n'Tutu Academy of Dance," which is established on the top floor of a three-storey building. The middle floor is used as a lace warehouse until the tenant moves out, and is then let to Shady, the proprietor of the "Intimate Bliss Massage Parlour." After three months Shady complains that the noise and vibration of Raisa's tap-dancing classes is disturbing his customers and affecting his trade. © 2020 Nottingham Trent University Page 1 of 12 LAW OF TORT: Introductory Reading Read the extract of Donoghue v Stevenson (1932) attached. At the start of the GDL you will study English Legal Method (“ELM”) and during this programme you will learn how to analyse case law. However, for now we would simply ask that you read the extract and consider: • what the material facts of the case were • what the legal issue to be decided in the case was We appreciate that this is a lengthy extract and may take you some time to read fully, but it is fundamental to your understanding of Tort. Your understanding of the case will further develop once you have studied English Legal Method and we will ask you to answer detailed questions on this case in the first Small Group Session (approx end of Sept). © 2020 Nottingham Trent University Page 2 of 12 [1932] A.C. 562 1932 WL 27658 (HL), 1932 S.C.(H.L.) 31, [1932] W.N. 139, 1932 S.L.T. 317 (Cite as: [1932] A.C. 562) *562 M'Alister (or Donoghue) (Pauper) Appellant; v. Stevenson Respondent. House of Lords HL Lord Buckmaster, Lord Atkin, Lord Tomlin , Lord Thankerton, and Lord Macmillan. 1932 May 26. Negligence--Liability of Manufacturer to ultimate Consumer--Article of Food-- Defect likely to cause Injury to Health. By Scots and English law alike the manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health:- So held,by Lord Atkin, Lord Thankerton and Lord Macmillan; Lord Buckmaster and Lord Tomlin dissenting. George v. Skivington (1869) L. R. 5 Ex. 1 approved. Dicta of Brett M.R. in Heaven v. Pender (1883) 11 Q. B. D. 503, 509-11 considered. Mullen v. Barr & Co., Ld., and M'Gowan v. Barr & Co., Ld., 1929 S. C. 461 overruled. APPEAL against an interlocutor of the Second Division of the Court of Session in Scotland recalling an interlocutor of the Lord Ordinary (Lord Moncrieff). By an action brought in the Court of Session the appellant, who was a shop assistant, sought to recover damages from the respondent, who was a manufacturer of aerated waters, for injuries she suffered as a result of consuming part of the contents of a bottle of ginger-beer which had been manufactured by the respondent, and which contained the decomposed remains of a snail. The appellant by her condescendence averred that the bottle of ginger- beer was purchased for the appellant by a friend in a café at Paisley, which was occupied by one Minchella; that the bottle was made of dark opaque glass and that the appellant had no reason to suspect that it contained anything but pure ginger-beer; that the said Minchella poured some of the ginger-beer out into a tumbler, and that the appellant drank some of the contents of the tumbler; that her friend was then proceeding to pour the remainder of the contents of the bottle into the tumbler when a snail, which *563 was in a state of decomposition, floated out of the bottle; that as a result of the nauseating sight of the snail in such circumstances, and in consequence of the impurities in the ginger- beer which she had already consumed, the appellant suffered from shock and severe gastro-enteritis. The appellant further averred that the ginger-beer was manufactured by the respondent to be sold as a drink to the public (including the appellant); that it was bottled by the respondent and labelled by him with a label bearing his name; and that the bottles were thereafter sealed with a metal cap by the respondent. She further averred that it was the duty of the respondent to provide a system of working his business which would not allow snails to get into his ginger-beer bottles, and that it was also his duty to provide an efficient system of inspection of the bottles before the ginger-beer was filled into them, and that he had failed in both these duties and had so caused the accident. The respondent objected that these averments were irrelevant and insufficient to support the conclusions of the summons. The Lord Ordinary held that the averments disclosed a good cause of action and allowed a proof. The Second Division by a majority (the Lord Justice-Clerk, Lord Ormidale, and Lord Anderson; Lord Hunter dissenting) recalled the interlocutor of the Lord Ordinary and dismissed the action. © 2020 Nottingham Trent University Page 3 of 12 [1932] A.C. 562 1932 WL 27658 (HL), 1932 S.C.(H.L.) 31, [1932] W.N. 139, 1932 S.L.T. 317 (Cite as: [1932] A.C. 562) 1931. Dec. 10, 11. George Morton K.C. (with him W. R. Milligan) (both of the Scottish Bar) for the appellant. The facts averred by the appellant in her condescendence disclose a relevant cause of action. In deciding this question against the appellant the Second Division felt themselves bound by their previous decision in Mullen v. Barr & Co., Ld. [FN1] It was there held that in determining the question of the liability of the manufacturer to the consumer there was no difference between the law of England and the law of Scotland - and this is not now disputed - and that the question fell to be determined according to the English authorities, and the majority of the Court (Lord Hunter dissenting) were of opinion that in England there was a *564 long line of authority opposed to the appellant's contention. The English authorities are not consistent, and the cases relied on by the Court of Session differed essentially in their facts from the present case. No case can be found where in circumstances similar to the present the Court has held that the manufacturer is under no liability to the consumer. The Court below has proceeded on the general principle that in an ordinary case a manufacturer is under no duty to any one with whom he is not in any contractual relation. To this rule there are two well known exceptions: (1.) where the article is dangerous per se, and (2.) where the article is dangerous to the knowledge of the manufacturer, but the appellant submits that the duty owed by a manufacturer to members of the public is not capable of so strict a limitation, and that the question whether a duty arises independently of contract depends upon the circumstances of each particular case.
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