Chapter 11Business and the law of torttorts, e.g. conspiracy requires proof of an intention to
injure the claimant rather than to promote the defend-
ant’s legitimate interests; proof of malice can defeat
certain defences to defamation, e.g. qualified privilege will
not protect a defendant who acted maliciously; malice
may make an otherwise reasonable act unreasonable so
as to establish liability, e.g. in the tort of nuisance.
There are two situations where tortious liability may
be imposed despite the defendant not being at fault.
1 Torts of strict liability.These are torts where the
claimant can recover compensation for loss or damage
without having to prove fault or intention on the part
of the defendant. Part I of the Consumer Protection
Act 1987, for example, provides that a manufacturer is
strictly liable for injuries caused by his defective prod-
ucts. The rule in Rylandsv Fletcher, breach of statutory
duty and conversion are further examples of torts
imposing strict liability.
2 Vicarious liability.In certain situations one person
may be held liable for the torts of another. This type of
liability is known as vicarious liability. An employer, for
example, is vicariously liable for the torts of his employ-
ees committed during the course of their employment.
Vicarious liability may also arise between partners and
between a principal and agent. There are various jus-
tifications for the principles of vicarious liability:
■liability is incurred by the person best able financially
to meet any award of damages (usually because the
risk is covered by insurance);
■the claimant is given an additional defendant to sue,
who is more likely to be able to satisfy any judgment;
■harm may be prevented by imposing liability on the
person in control of the activity;
■the claimant is provided with a defendant in cases
where it is impossible to establish precisely who was
responsible within a particular organisation for the
wrongful conduct.
The vicarious liability of an employer for the acts
of his employees will be studied in more detail in Chap-
ter 16.
Proof of damage
The law of tort is concerned with providing a remedy
for certain forms of wrongful conduct. In most torts, the
claimant must prove that he has suffered some damage,
e.g. personal injury or damage to his property, in order
to establish liability. However, the fact that the claimant
has suffered damage is not sufficient on its own to
establish liability. The claimant must also prove that the
damage was caused by the defendant’s infringement of
a right vested in the claimant which is recognised by
the law. For example, the construction of an out-of-
town shopping centre may result in a loss of trade for
town centre shops, but since the law does not provide
a right to protection from competition, affected shop-
keepers will not have a remedy, no matter how severe
their losses.
Although proof of damage is an essential component
of most torts, some rights are regarded as so import-
ant that the law will provide a remedy even though the
claimant has not suffered any damage. These torts are
said to be ‘actionable per se’ (actionable in itself ) and
the most important examples are libel and trespass.
Nominal damages can be recovered in respect of these
torts even though no loss has occurred.Causation
Liability in tort is dependent on making a connection
between the defendant’s wrongful conduct and the dam-
age suffered by the claimant. If the damage was caused
by some other factor, the defendant will escape liability.
The factual cause of the damage is established by apply-
ing the ‘but for’ test, i.e. would the damage have occurred
‘but for’ the defendant’s tortious conduct? An example
of the application of this test in the context of a claim in
negligence is given below.331
Barnettv Chelsea & Kensington Hospital
Management Committee(1968)
Mr Barnett, a nightwatchman, attended the defendant’s
hospital in the early hours of the morning complaining of
vomiting. The casualty doctor failed to examine him but
instead sent a message that Mr Barnett should see his own
GP in the morning if he was still unwell. Mr Barnett died
five hours later from arsenic poisoning. The court held
that, although the hospital doctor was negligent in failing
to examine Mr Barnett, the failure to take reasonable
care was not the cause of his death. The evidence was
that, even if Mr Barnett had been examined, correctly
diagnosed and treated, he would have died anyway.