Law of Torts: Rights of Gina and Samuel

Running head: LAW OF TORTS
Law of Torts
Name of the Student
Name of the University
Author Note

1LAW OF TORTS
Question 1
Issue
The issue is to determine the rights of Gina in terms of her ownership on her land and
the rights of Samuel pertaining to the loss that he have suffered.
Rule
Tort refers to certain type of civil wrongs that are committed by an individual against
another. Under law of tort, individuals can claim damages against a wrong resulting to injury or
loss, committed by another individual. A tort is committed by a ‘tortfeasor’, which results to
injury or loss to another. Law of torts is distinguished from criminal and contractual law. A
criminal act is a wrong committed not only against an individual, but also against the society,
and hence it is dealt by the criminal court. While, contractual cases are dealt by civil courts
where the contractual rights and duties between contractual parties have been challenged.
However, the distinguishing line between law of tort, contract law and criminal law are
overlooked for they merge with each other sometimes. For example, a violent offence committed
against a person due to a negligent act would amount to assault, which would be prosecuted in a
criminal court, but the claimant would claim the damages through civil proceeding, in a civil
court. The claimant can sue for the losses that he has suffered due to someone else’s tortious
acts. The claimant must prove that he has suffered a substantial loss, which was foreseeable by
the tortfeasor.

2LAW OF TORTS
Negligence is the most common form of tort, which makes a claimant eligible to sue the
tortfeasor. In the case of Donoghue v Stevenson [1932] AC 562, Lord Atkin laid down the
following essential elements that need to be satisfied for amounting the tort of negligence:
 There was a duty of care of the tortfeasor towards the claimant;
 The duty was breached by the tortfeasor;
 The breach of duty amounted to injury or loss; and
 The injury was not unforeseeable
Duty of care
Duty of care refers to the responsibility one has towards another, breach of which gives
rise to tortious liability of compensating the claimant who have suffered loss or injury (Luntz
2017). Therefore, it is important for the claimant to prove the fact that the tortfeasor owed him a
duty of care and such duty has been breached. In the case of Donoghue v Stevenson [1932] AC
562, Lord Atkin held that one must adopt reasonable care to avoid any wrongful act or omission,
which was otherwise reasonably easy to foresee, which has the potential to hurt or injure ones
neighbour. The question was raised as to identify one’s neighbour and it was argued by Lord
Atkin that anyone who lives in close vicinity and could be directly affected by one’s wrongful
actor omission. The ‘neighbour test’ was put forward to establish and confirm the duty of care of
a person towards his neighbour, which includes the following: Foreseeability of injury and the
relationship of closeness or proximity between the claimant and tortfeasor.
In the case of Topp v London Country Bus [1993] 1 WLR 976 it was held that the bus
company would not be held liable for breaching a duty of care as the duty was breached by a
third party. In addition, it was not foreseeable that thieves would steal the bus and that it would
hit and run a woman off her bicycle. This gives a clear view of the concept of foreseeability of

3LAW OF TORTS
injury or loss inflicted upon a claimant by the tortfeasor. While in the case of Bourhill v Young
[1943] AC 92 it was held that the defendant or the tortfeasor would not be held responsible for
any harm inflicted upon the claimant for the injury was not foreseeable nor was the defendant in
proximity of the location of the accident. Therefore, no duty of care was established.
While in the case of Caparo Industries Plc v Dickman [1990] 2 AC 605 the court added
another essential along with the factor of foreseeability and proximity. The element of
reasonableness was added which states that it must be fair and reasonable for the imposition of a
duty of care on the defendant.
Breach of duty
In the case of Vaughan v Menlove (1837) 3 Bing NC 467, the defendant was held for
breaching his duty of care towards his neighbour for he did not take care of the haystack which
caught fire due to poor ventilation. The court held that the defendant was at fault for gross
negligence for he was responsible for proceeding with reasonable caution, as a man of ordinary
prudence would have done as per the circumstance.
The concept of Negligence and Absolute Liability as evolved under Ryland v Fletcher
In the case of Ryland v Fletcher [1868] UKHL 1 a new concept of liability was evolved
which is known as strict liability where the defendant was held liable even in the absence of a
negligent act on his part. The theory of strict liability exclaimed that a person would be held
strictly liable who is in charge of certain dangerous or non-natural thing, which has the potential
to harm others if it escapes the confinement, even if the wrongful act is carried out by the act or
omission of a third party. In this case, the defendant constructed a reservoir on his land by
employing an independent contractor. The reservoir flooded the neighbouring mineshaft of the
claimant giving effect to a pure economic loss. The Court of Exchequer Chamber held the