Law of Torts

University of Birmingham
Seminar 1 – Introduction to the Aims and Functions of Tort Law
The purpose of this first seminar is to help you come to terms with some of the aims,
objectives, and criticisms of tort law. To achieve this, we will consider what it means to
commit a ‘wrong’ for the purposes of tort liability and we will discuss various lenses through
which we can see tort operating (ie. to achieve corrective justice between the parties or to
achieve more pragmatic ends, such as compensation and deterrence). In this seminar, we will
also consider some feminist critical theory. Although we will only have time to scratch the
surface of this theoretical material, the arguments contained within the literature apply
throughout the entirety of the course.

Required Reading:
Textbooks
Nolan and Oliphant, Tort Law – Chapter 1
*If you were particularly interested in our discussion on a ‘compensation culture’ and want to
know more about potential alternative methods to our current fault-based system, you can
find an interesting discussion on this in Chapter 17 pp 1000-1014.
Case Law
Nettleship v Weston [1971] 3 WLR 370
Roberts v Ramsbottom [1980] 1 WLR 823
Mansfield v Weetabix [1998] 1 WLR 1263
McFarlane v Tayside Health Board [2000] 2 AC 59
Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309
Articles
Conaghan J, ‘Tort Law and Feminist Critique,’ (2003) 56 Current Legal Problems 175 (stop
reading at 197)
Weinrib E, ‘Corrective Justice in a Nutshell,’ (2002) 52 UToronto LJ 349
Williams G, ‘The Aims of the Law of Tort,’ (1951) 4 Current Legal Problems 137
* Feel free to explore the ResourceList on Canvas where there are a range of additional
sources relevant to Seminar 1

Questions for Discussion

1. Are the decisions in Nettleship v Weston, Roberts v Ramsbottom, and Mansfield v

Weetabix based on liability for fault?

2. What is tort law for?

 • Backward-looking role?
• Forward-looking role?

3. To what extent to you agree with the decisions in McFarlane v Tayside Health Board
and Rees v Darlington Memorial Hospital NHS Trust? In answering this question, pay
close attention to the role that principle and policy played in these decisions.

• In your opinion, did the courts strike the right balance between principle and
policy? If yes, why? If not, how would you have decided the cases and why?

Nettleship v Weston: Case Summary

The Defendant was a learner driver. She was taking lessons from a friend who checked that the Defendant’s insurance
covered for her to be a passenger in the car. During a trip in the car the Defendant hit a lamp post and subsequently fractured
the Claimant’s knee. The Defendant raised that as a learner driver her responsibility for standard of care should be lowered
however this was not held but damages were reduced by 50%.

Roberts v Ramsbottom: Case Summary

Facts
1
The defendant was driving in his car when he suddenly suffered a stroke. The defendant knew he did not feel well. He also
had some awareness of what was happening. During this time, he had two collisions (though he had no recollection of this).
The defendant nevertheless kept driving and ultimately crashed into the claimant’s parked car. The claimant was injured and
suffered property damage. They sued the defendant in negligence.

Decision
The High Court held in favour of the claimant. The defendant had not completely lost control of his actions, which fell below
the objective standard of care imposed on drivers. It did not matter that the defendant did not appreciate the significance of
his symptoms (being unaware he was having a stroke).

Mansfield v Weetabix: case summary

The defendant drove his lorry into a shop owned by the claimant. At the time of the incident the defendant was had a
malignant insulinoma which resulted in him being in a hyperglycaemic state although he was unaware of this. On the day of
the crash he had also been involved in two minor incidents.

Held:
The defendant was not in breach of duty

Leggatt LJ
"In my judgment the standard of care that Mr Tarleton was obliged to show in these circumstances was that which is to be
expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to
drive. To apply an objective standard in a way that did not take account of Mr Tarleton’s condition would be to impose strict
liability. But that is not the law."
McFarlane v Tayside Health Board: case summary

Facts
The claimants Mr and Mrs McFarlane, had four children and deciding that this was enough, Mr McFarlane had a vasectomy.
The McFarlanes were informed that the husband’s sperm count was negative and that contraceptive measures were no longer
necessary.
After following this advice, Mrs McFarlane became pregnant and gave birth to a healthy child, Catherine.
Mrs McFarlane brought a claim for the physical discomfort arising from her pregnancy, confinement, and delivery and the costs
associated with this and both parents claimed for the financial costs of bringing up the child.
Held (House of Lords)
Allowing the claimants’ appeal in part; the mother was entitled to damages for the pain, suffering, and inconvenience of pregnancy
and childbirth and to damages for extra medical expenses, clothing, and loss of earnings associated therewith.
The House of Lords unanimously refused to allow the parents’ claim for the costs of raising the child.

Rees v Darlington Memorial Hospital NHS Trust: case

C, who was severely visually handicapped and feared that her lack of sight would prevent her from being able to care for a child,
underwent a sterilisation operation which was negligently performed at a hospital managed by D.
C subsequently conceived and gave birth to a healthy child whose father did not wish to be involved with his upbringing.

The Court of Appeal by a majority concluded that although damages could not be recovered in respect of costs arising from the birth
of a healthy child it was, just as in the case of a child born with a disability, fair, just and reasonable for the parent who was disabled to
recover by way of damages the additional costs attributable to her disability in bringing up the child; D appealed.

Appeal allowed; distributive justice precluded an award of damages against a doctor or health authority in respect of the costs of
bringing up a normal healthy child.
However, a measure of recognition for the denial of the opportunity to live in the way she had planned would be afforded by a
conventional award in the sum of £15,000.

1. Are the decisions in Nettleship v Weston, Roberts v Ramsbottom, and Mansfield v Weetabix based on liability for fault?

Yes, the decisions in Nettleship v Weston, Roberts v Ramsbottom, and Mansfield v Weetabix all involve considerations of liability for
fault or negligence. In these cases, the courts assessed whether the defendants breached their duty of care, which is a fundamental
element of establishing liability in negligence cases.

In Nettleship v Weston, the court addressed the standard of care expected of a learner driver, and while the defendant argued that her
responsibility should be lowered, the court still considered her liability for the accident and reduced damages by 50%.

In Roberts v Ramsbottom, the court evaluated the defendant's actions when he suffered a stroke while driving. The court determined
that he had not completely lost control of his actions and therefore fell below the objective standard of care, making him liable for the
accident.

In Mansfield v Weetabix, the court examined whether the defendant's medical condition, of which he was unaware, affected his ability
to drive and whether he breached his duty of care. The court's decision took into account the defendant's condition but still focused
on the standard of care expected of a reasonably competent driver.

In all these cases, the concept of liability for fault or negligence was central to the court's decisions regarding whether the defendants
were responsible for the harm caused.
2. What is tort law for? • Backward-looking role? • Forward-looking role?

Tort law serves both backward-looking and forward-looking roles:

1. Backward-looking role:
- Compensation: One of the primary purposes of tort law is to provide compensation to individuals who have suffered harm or losses
due to the wrongful actions of others. It allows victims to seek financial remedies for the injuries or damages they have endured.

2. Forward-looking role:
- Deterrence: Tort law aims to deter individuals and entities from engaging in harmful or negligent behavior in the future. By holding
wrongdoers accountable and imposing liability for their actions, tort law discourages similar misconduct and promotes responsible
conduct in society.
- Prevention: Tort law also encourages preventative measures. Knowing they could be held liable for their actions, individuals and
organizations are motivated to take precautions and avoid situations that might lead to harm to others.

In essence, while tort law provides redress for past wrongs through compensation (backward-looking), it also strives to shape future
behavior by promoting accountability and responsible actions (forward-looking).

3. To what extent to you agree with the decisions in McFarlane v Tayside Health Board and Rees v Darlington Memorial Hospital
NHS Trust? In answering this question, pay close attention to the role that principle and policy played in these decisions.

In McFarlane v Tayside Health Board, the defendant did not pay compensation for the costs of raising the healthy child because the
court deemed it unreasonable to hold the healthcare provider responsible for those costs.

In Rees v Darlington Memorial Hospital NHS Trust, the defendant did pay £15,000 in compensation. This payment was made as a
measure of recognition for the denial of the opportunity to live as planned due to medical negligence, even though they were not held
liable for the costs of raising the healthy child.