Tort Law

This document provides an overview of Tort Law, including the elements of duty, breach of duty, causation, and injury. It discusses relevant case laws and their implications. The document also explores the application of Tort Law in a specific case involving the Auckland Council's negligence. Study material and resources on Tort Law are available on Desklib.

Running head: TORT LAW
TORT LAW
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On 5th March 2019 Bruce Steedman, 40 years of age, a doctor by profession and visitor to
New Zealand, was seen to be getting injured by tripping in an open tree surround that was
situated on Newmarket Broadway. After tripping he suffered a fracture in the skull and was
knocked out instantly. The injured has been reported to be suffering severe injuries to the head
which would require him to have ongoing medical attention. Due to this medical attention he is
seen to be having extreme mood swings that has been affecting his relationship with his friends
and his family and it would further be preventing him to be doing any other job in the future
other than menial jobs. There had been several complaints to the Auckland Council for years
about the dangerous tree surround that has been present in the Newmarket Broadway area. The
Council has been warned by the Newmarket Business Association and other local retailers for
last five years. However there has been no action taken by the Council regarding this.
Tort can be defined as the legal area that deals with the obligation an entity has towards
any other entity.1 Torts arise when there is a breach of an obligation and because of that breach
the party to whom the obligation was owned, experience damage.2 There are four elements to a
tort: duty, breach of duty, causation and injury.3 The first element in a tort is there should be a
duty of care. 4
The second element of the tort of negligence is breach of duty of care. It means that the
defendant should have breached the duty of care towards the plaintiff by acting or committing an
act towards the plaintiff.5 The third element is the causation which means that the breach of duty
of care should result in the plaintiff’s injury and such breach should be the cause of the plaintiff’s
1 Van Dam, Cees. European tort law. OUP (Oxford, 2013).
2 Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky. Tort Law: Responsibilities and Redress (Aspen
Publishers, 2016)
3 Mulheron, Rachael. Principles of tort law (Cambridge University Press, 2016).
4 Burrows, John Frederick, et al. The law of torts in New Zealand (Thomson Reuters, 2013).
5 Zipursky Zipursky, Benjamin C. "Reasonableness in and out of Negligence Law." 2014 2131U. Pa. L. Rev. 163.

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injury.6 The fourth element in tort is the element of injury. For a tort law to be applicable there
should be an injury caused in respect to the breach that happened.7
In the case, Donoghue vs. Stevenson8, the foundation for the tort of negligence is laid
down. In that case, it was held by the the court that the sellers of a product including the stores
and the cafes owe a duty of care towards the consumers or the buyers of the product. the court
will held a person liable if any average person under such circumstances would have taken
reasonable steps and actions to avoid such injury that have been caused to the plaintiff. On the
other hand, it has also been explained that the result of the breach of the duty shall cause the
injury to the plaintiff. In the case of Donoghue vs. Stevenson, the defendant was the storekeeper
whereas Donoghue was the consumer of the drink. The drink was purchased by her friend and
was presented to her as a gift. Therefore, it was affirmed by the court that the storekeeper owes a
duty of care even to the people with whom he or she has not evolved contractual relationship, but
the contractual relationship between the seller and the buyer has directly resulted in the injury to
the third person due to lack of duty of care which was reasonably overlooked by the defendant.
In McGhee vs. National Coal Board9, the duty of care by the employers has been revised
to show that the plaintiff was entitled to the damages against the dermatitis that was caused to
him due to emptying of the coal in the course of his employment. The duty of care by the
employers constituted the lack of washing or shower arrangements post the job. Therefore, the
defendants were held liable for breach of duty of care by them and hence, the tort of negligence
was established in the case.
6 Steel, Sandy. Proof of causation in tort law. No. 120 (Cambridge University Press, 2015).
7 Okrent, Cathy. Torts and personal injury law (Nelson Education, 2014).
8 Donoghue vs. Stevenson [1932] AC 562
9 McGhee vs. National Coal Board [1972] 3 All E.R. 1008, 1 W.L.R. 1

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In Chaplin vs Hicks10, it was held as a classic example of contractual cause where the
damages were awarded for the loss of chance. In this case, the Court held that the causation is a
very important ground even for the chances lost in the course of time. In the given case, the
plaintiff was one of the candidates appearing for the interview of nurses where the plaintiff was
not interviewed. It was held by the Court that the defendant was liable for the damages caused to
the plaintiff as the opportunity denied results in the chances of gaining valuable employment.
Therefore, the cause of action should arise from the breach of duty by the defendant.11 However,
in Scott Group Ltd. vs. MacFarlane12, it was held that though the plaintiff suffered loss of chance
in being in a better off position than the present but no actual monetary loss was caused.
Therefore, it was held by the Court that such loss without the cause of action that had been
arising from the parties’ breach of duty cannot be accountable under the tort of law.
The law of New Zealand is open to accept all the harm including the loss of chance as a
tort and an actionable course of action provided that such action should result in the injury not
beyond the provisions laid down in section 4 of the Act. However, section 17 of the Act prohibits
any course of action arising directly or indirectly from the injury of the person involved.
In the current case it is seen that the Auckland council is responsible for the legal duty of
care towards people by providing safe environment. However this duty was breached by the
council by not responding to the complaints of the Newmarket Business Association and the
other local retailers regarding the open tree surround in the area. The Council has been warned
by the Newmarket Business Association and other local retailers for last five years. However
there has been no action taken by the Council regarding this. This negligence of the Auckland
10 Chaplin vs Hicks [1911] 2 KB 786
11 Geistfeld Geistfeld, Mark A. "Tort Law in the age of Statutes." 2013 99 Iowa L. Rev. 957.
12 Scott Group Ltd. vs. MacFarlane [1975] 1 NZLR 582

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Council has resulted in a breach of duty of the Council and in return has resulted in causing
injury to a person. The causation of the injury is a direct result of the breach of duty or care by
the Auckland Council. Hence it is seen that the Auckland Council can be held liable for the
injury that has been suffered by Bruce Steedman under the law of tort of negligence.
As seen in the case of Donoghue vs. Stevenson, the defendant was the storekeeper
whereas Donoghue was the consumer of the drink. The drink was purchased by her friend and
was presented to her as a gift. Therefore, it was affirmed by the court that the storekeeper owes a
duty of care even to the people with whom he or she has not evolved contractual relationship, but
the contractual relationship between the seller and the buyer has directly resulted in the injury to
the third person due to lack of duty of care which was reasonably overlooked by the defendant.
Applying the judgment in the current case it can be seen that although Bruce is not a citizen of
New Zealand yet the injury had occurred in New Zealand where the Council has a duty of care to
ensure safety of the people. The Council is bound to a duty of care even to people with whom it
has no contractual relation when the breach of duty of the Council is seen to be effecting to the
injury of a person.
In McGhee vs. National Coal Board the defendants were held liable for breach of duty of
care by them and hence, the tort of negligence was established in the case. Similarly in this case
the Auckland Council has been seen to be in breach of ignoring the complaints of the Newmarket
Business Association and other local retailers and hence the tort of negligence can be applied
against them.
In Chaplin vs Hicks the Court held that the causation is a very important ground even for the
chances lost in the course of time. In the case it was held by the Court that the defendant was

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liable for the damages caused to the plaintiff as the opportunity denied results in the chances of
gaining valuable employment. Therefore, the cause of action should arise from the breach of
duty by the defendant. Applying the decision in the current case it can be seen that because of the
injury that was suffered by Bruce he needs ongoing medical attention and for this reason is seen
to be having extreme mood swings that has been affecting his relationship with his friends and
his family and it would further be preventing him to be doing any other job in the future other
than menial jobs. Thus Bruce can held the Council liable for payment of damages of the
opportunities he lost because of the breach of duty of care by the Council. The judgment in Scott
Group Ltd. vs. MacFarlane cannot be used in this scenario as there had been monetary loss of
Bruce because of the treatment he is receiving.

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Reference
\Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky. Tort Law: Responsibilities
and Redress (Aspen Publishers, 2016)
Burrows, John Frederick, et al. The law of torts in New Zealand (Thomson Reuters, 2013)
Mulheron, Rachael. Principles of tort law (Cambridge University Press, 2016)
Okrent, Cathy. Torts and personal injury law (Nelson Education, 2014)
Steel, Sandy. Proof of causation in tort law. No. 120 (Cambridge University Press, 2015)
Van Dam, Cees. European tort law. OUP (Oxford, 2013)
Zipursky, Benjamin C. "Reasonableness in and out of Negligence Law." 2014 2131U. Pa. L.
Rev. 163
Geistfeld, Mark A. "Tort Law in the age of Statutes." 2013 99 Iowa L. Rev. 957
Case Laws
Chaplin vs Hicks [1911] 2 KB 786
Donoghue vs. Stevenson [1932] AC 562
McGhee vs. National Coal Board [1972] 3 All E.R. 1008, 1 W.L.R. 1
Scott Group Ltd. vs. MacFarlane [1975] 1 NZLR 582

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