Chapter 8
The tort of negligence
The previous few chapters have considered contractual liability. This chapter and the
following one consider a different type of liability, liability in tort. Before considering
specific rules about particular torts, it is necessary to consider the differences between liab-
ility in contract and liability in tort. Having done this, this chapter examines in some detail
the major principles of the tort of negligence. The chapter ends with a consideration of the
liability of occupiers of premises and the liability of manufacturers of unsafe products. Both
of these types of liability are closely related to the tort of negligence. The following chapter
considers torts which are not related to negligence, such as trespass to land and the tort of
nuisance.Contract remedies and tort remedies
A tort can be defined as a civil wrong which is not a breach of contract. This definition
makes it plain that civil liability can be broadly classified into two types: liability arising in
contract and liability arising in tort. In previous chapters it has been seen that liability under
a contract is liability voluntarily undertaken, and that it is undertaken because something
(the other party’s consideration) is given in return. For example, if Business A makes a
contract to buy a computer system from Business B, then both the decision to buy and the
decision to sell will have been freely made. In addition, both sides will have made a bargain.
That is to say that the liabilities which they assumed under the contract will have been given
in exchange for the rights which they gained under the contract.
Liability in tort is not undertaken voluntarily. It is imposed by the courts who have
decided that certain types of behaviour give rise to tortious liability. If a person injures
someone else by such behaviour the injured person may sue. For example, if a driver runs
over a pedestrian, while driving badly, then the injured pedestrian will be able to sue the
driver for the tort of negligence. The driver has no choice about whether or not to accept
such liability, the courts will impose it. Nor will the driver have received any benefit in
return for accepting the liability. It will have arisen not as a result of a bargain, but as a
consequence of having committed a tort.
Another difference is that liability in contract is generally strict, whereas liability in tort
is almost always based on fault. The tort of nuisance (see Chapter 9) is an exception. For
example, in Chapter 3 we saw that s. 14(2) of the Sale of Goods Act 1979 requires that goods
sold in the course of a business must be of satisfactory quality. This contractual liability
is strict. A shop which sells packaged goods which are not of satisfactory quality is liable
for breach of contract even though it was not the shopkeeper’s fault that the goods were