Free «Tort Law» Essay Sample

In the common law, a tort is a civil wrong, other than a breach of contract, for which the law provides a remedy (wikipedia).(1) The equivalent body of law in civil law legal systems is delict. Delict is an act by which a person, by fraud or malignity, either voluntarily or accidentally without evil intention causes some damage or tort to another. In its most enlarged sense, it includes all kinds of crimes and misdemeanors; including injury caused by the other. They are punishable by imposing a small fine or short imprisonment, depending on the intensity of the case (Lectric Law) (2).

There are three basic elements in a tort: wrong, harm and an appropriate relationship between the injurer's wrong and the harm to the victim. To harm someone is to set back a legitimate interest. The central idea in tort law is that liability is based not so much on acting badly or wrongfully, but on committing a wrong.

Note: It is not enough that the injurer has committed a wrong and that he (the victim) has suffered as a consequence. The defendant's liability to the victim and the victim's claim against the defendant depend on the defendant having breached a duty of care to the victim.

"When liability is imposed strictly, the question is whether the defendant has invaded the plaintiff's right. A plaintiff under strict liability does not have to establish the fault of the defendant, though a judgment of strict liability does not necessarily mean that the defendant has acted innocently or justifiably.

According to the conventional view, under fault liability, the plaintiff has to establish not only that he was wronged by the defendant but that in doing so the defendant acted wrongfully, that is, without justification or excuse".(The Difference Between Fault and Strict Liability, Theories of Tort Law, (3).


Case Analysis

The case in question is the one which has come up before the Supreme Court: Atkins v Ministry of Defence. In 2008, Atkins, who was on active duty in Iraq, received extensive damage while patrolling in the outskirts of Baghdad, when the lightly armoured Snatch Land Rover ran over a bomb. Atkins claimed that the defendants (Ministry of Defence) were negligent in allowing the use of Snatch Land Rovers for such dangerous work. The defendants denied that they owed a duty of care to their soldiers in such situations. The High Court of Justice held that no duty of care was owed by the defendants to the claimant on the grounds that the claimant was, at the time he received his injuries, in the course of combat. Therefore, it would be unfair, unjust and unreasonable to impose a duty of care on the defendants. The court ruled that the claimant's argument that the injury to him was foreseeable and that there was a proximate relationship between the parties were not of relevance in the case. The Court of Appeal also upheld this decision. It was then brought to the Supreme Court.Before giving its judgment, the Supreme Court referred the Barrett v Ministry of Defence [1995] 1 WLR 1217: Barrett v Ministry of Defence Court of Appeal (Civil Division)  21 December 1994

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The case was reported [1995] 1 W.

L.R. 1217; [1995] 3 All E.R. 87; Times, January 13, 1995; Independent, January 3, 1995; Guardian, December 24, 1994


The case filed by the defendant was 'Negligence' on the part of the Ministry of Defence in preventing an employee from becoming drunk and performing duty. The defendant noted that her deceased husband was not discouraged from drinking and that the deceased's commanding officer failed to take precautions to prevent injury or fatality (tenconsultancy, 2008).

Case: "P was the widow and executrix of the deceased. Her husband was working as a naval airman, before he died after consuming alcohol and asphyxiating on his own vomit. Barrett's commanding officer was charged for dereliction of duty. P sued the Navy for negligence of the basis that it owed a duty of care to the serviceman. There was laxity in the enforcement of regulations, and the Navy had failed to impose discipline and provide adequate medical care for the deceased. The trial judge equated the Queen's Regulations for the Royal Navy 1967 with safety regulations in factories in coming to a conclusion, but also found the deceased guilty of contributory negligence. The defence held that the judge was wrong in equating the Queen's Regulations with safety codes in factories, and the mere existence of regulatory or public duties does not by itself create a special relationship imposing a duty of care in law for the safety of others. It was neither justified nor reasonable to blame the defense for the lackluster behavior and lack of self-control of the claimant. Since only the claimant knew how much he could consume, it was beyond the defense to know the state of the claimant. Therefore, the deceased's contributory negligence should be raised to two- thirds" (tenconsultancy, 2008)

In a similar case:

Christopher Jebson vs. Ministry of Defence

Court of Appeal

Christopher Jebson, 21, was severely injured when he fell out of an Army lorry transporting him and his colleagues back to camp. When his claim came on for trial of liability before Mr. Justice Jowitt in May 1999, he lost. However, when he appealed to the Court of Appeal he won.

During the argument, it was thought that the argument of the claimant was beyond reason. If one were to go out and get drunk, then they must face the consequences of their action. However, in this case, the Army had arranged the trip, provided the lorry and driver, for their pleasure. Therefore, the army should have anticipated that the men would be drunk and behave foolishly. They could have acted more responsibly by asking the Lance Sergeant, who was sober, to sit in the back and keep order. "The Court asked the defence counsel if his case was that the duty on the Defendants should be assessed regardless of the fact that they knew that the Claimant was drunk." He agreed. The appeal of the claimant won, "but the trial judge's assessment of contributory negligence was not changed" (Braithwaite, 2000).  


In the case of Atkins, the High Court of Justice, and the Court of Appeal upheld the decision that the injury to the claimant was foreseeable and that the defendant had no duty of care at the time of the injury which was during the course of combat.

Also, since the claimant was on duty where there was every chance of him being injured, it was unfair, unjust and unreasonable to impose a duty of care on the defendants. Taking into consideration of Barrett vs. Ministry of Defence, the Supreme Court could apply the rule of the Queen's Regulations for the Royal Navy 1967, to provide compensation to Atkins for injuring himself while on duty, but could not accept the argument of negligence in allowing the use of Snatch Land Rovers for such dangerous work. As in the case of Christopher Jebson vs. Ministry of Defence, the claimant new very well that there was always a risk to his life and that he had volunteered to join the army with this knowledge. On this count, The Supreme Court could dismiss the plea of contributory negligence. 


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