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The nature of tortious liability
1.1 General principles of tortious liability 1.1.1 The character of tort
1 The word tort comes from the French, meaning ‘wrong’.
2 Tort concerns civil wrongs leading to possible compensation.
3 A common definition is: ‘Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages’ (Winfield).
4 Character is dictated by historical background, so a better definition is: ‘subject to statutory intervention, a tort is a wrong which in former times would have been remediable by one of the actions for trespass (for direct wrongs) or trespass upon the case (for indirect wrongs)’ (Cooke) – so should refer to a law of torts.
5 The standard modern model is as follows: the defendant’s act or omission causes damage to the claimant through the fault of the defendant, and damage is of a type which attracts liability in law.
6 However, there are complications:
a) strict liability torts do not require faults to be proved;
b) the type of damage caused may not give rise to liability (damnum sine injuria);
c) some conduct results in liability even without damage (injuria sine damno).
1.1.2 The aims of tort
1 There are two principal objectives in tort: deterrence and compensation.
a) Deterrence operates more on a market than an individual basis – the idea is to reduce the cost of accidents.
b) Compensation – the purpose of damages is to put the victim in the same position as if tort did not occur (reliance loss).
2 A key question is whether the system adequately compensates victims.
3 Points to consider:
only those who can show fault can be compensated;
both Pearson and Woolf reports identified delay and costs as major drawbacks;
reductions in value of compensation: pressure is on the claimant to settle – usually for two-thirds to three-quarters;
no point suing ‘a man of straw’ – exceptions are third party insurance under Road Traffic Acts; vicarious liability; Employer’s Liability (Compulsory Insurance) Act 1969;
the system discourages claims: only one in ten potential personal injury claims are pursued;
the effect of the Woolf reforms on encouraging or deterring claims.
1.1.3 Alternative methods of compensation
1 These were considered as early as Royal Commission on Civil Liability and Compensation for Personal Injury (Pearson Commission) 1978.
2 The Commission was the follow-up to the Thalidomide scandal.
3 The Commission did not recommend an end to the tort system in personal injury, but did recommend a partial no-fault system.
4 New Zealand operates such a scheme: benefits up to 80 per cent of earnings; limited lump sum amounts in permanent disability – 1982 reforms found no one in favour of returning to fault system.
5 Public insurance is one alternative – Pearson showed that the cost of obtaining tort compensation is much higher than the cost of administering the Social Security system.
6 Private insurance – too expensive for many people, and not within British culture.
7 Compensation from public schemes, e.g. Criminal Injuries Compensation Scheme, Motor Insurance Bureau, if applicable.
1.1.4 The interests the law of torts prot...
