Tort Law

Timon Hughes-Davies, Nathan Tamblyn

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351371520
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

What happens if a driver carelessly crashes into another car? Or a newspaper publishes a story which makes derogatory comments about someone? Or if a resident plays loud music every night so that their neighbour cannot get any sleep? Tort law is a collection of such misbehaviours or misadventures where the law deems it appropriate to intervene with civil remedies.

This new textbook addresses a range of the most prominent torts. The law is explained with clear writing and an accessible approach, relating the subject to everyday examples. There are key learning points to help anchor the reader's basic understanding, and sections of analysis to guide the reader to a more advanced critical engagement. Above all, tort law is interesting, for it covers so much of our daily lives, and is a constant source of evolving litigation.

The Routledge Spotlights series brings a modern, contemporary approach to the core curriculum for the LLB and GDL, which will help students:

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• move beyond an understanding of the law;

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• refine and develop the key skills of problem-solving, evaluation and critical reasoning;

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• discover sources and suggestions for taking your study further.

By focusing on recent case law and real-world examples, Routledge Spotlights will help you shed light on the law, understand how it operates in practice, and gain a unique appreciation of the contemporary context of the subject.

This book is supported by a range of online resources developed to aid your learning, keep you up to date and help you prepare for assessments.

Chapter 1

About Tort Law

This chapter considers the following questions. What is tort law? What is the purpose of tort law? How does tort law fit with other areas of law?

The word ‘tort’ comes from the Old French (via the Norman Conquest), which in turn comes from the Latin (via the Roman Empire), and means a civil wrong. So:

Key learning point

Tort law is a collection of misbehaviours or misadventures where the law deems it appropriate to intervene with civil remedies.

For example, here is a selection of torts discussed in this book:

If a driver carelessly crashes into another car, they might be liable in the tort of negligence, and have to pay for any damage. If a defendant publishes a story which is derogatory of the claimant, they might be liable in the tort of defamation, and have to issue an apology. If a defendant plays loud music every night so that their neighbour cannot get any sleep, they might be liable in the tort of private nuisance, and be ordered to quieten down.

Each tort is a separate cause of action. In other words, each tort has its own ingredients which a claimant must prove in order to be successful. That said, some ingredients are common to several torts. So too some defences and remedies are common to many torts.

Tort law is not the only form of civil wrong. For example, contract law provides civil remedies where, characteristically, one party does not keep its promises. Or a defendant might incur liability for an equitable wrong, for example for breach of a fiduciary duty (that is, a duty which arises from a special relationship of trust and confidence). Or a defendant might incur liability in unjust enrichment, where they have been enriched at the expense of the claimant in unjust circumstances (for example, where a defendant has taken payment for something, but provided nothing in return). Or a defendant might owe duties under the law of bailment, if they find themselves looking after the claimant’s goods.

Why is there such a variety of approaches? The honest answer is, that is just the way it turned out. The common law has been developing for nearly 1,000 years. It has been developed by a range of institutions, sometimes as collaborators, often as rivals. It has been shaped by political movements and philosophical ideologies. Political movements have come and gone. Philosophical ideologies have waxed and waned. As society has changed, in some areas the law had to innovate; in other areas it became outdated. Just consider the enormity of change: the printing press, democracy, factories, the motor vehicle, the welfare state, the internet. Our knowledge and skills have improved (hopefully). The common law is always a work in progress. Its growth can be both conscientious and haphazard.

Further, life is complicated. We have multiple relationships of different types with different people. We engage in all sorts of activities which interact with other people and their property in diverse ways. The persistent volume of litigation passing before the courts is testament to the ceaseless creativity with which people get into disagreements. It is not possible to resolve all this complexity with a single method. The law has developed multiple approaches, like tort and contract, in its attempt to provide fair or palatable outcomes which respond appropriately to differences in the cases.

What is more, life is not neat, nor is the law. Our behaviours and adventures are rarely compartmentalised in a way that they raise only one issue without broader impact or consequences. For example, on any given set of facts, a claimant might be able to raise arguments in both tort and contract. Or a claimant suing in tort law might be able to raise multiple causes of action. It is important, whether as a student or as a practising lawyer, to identify all the different approaches potentially available to a claimant. Some causes of action might be easier to prove, because their ingredients better suit the narrative of the facts. Other causes of action might provide a more desirable remedy.

All this also means that different areas of law, like contract and tort, are never totally distinct. They are more like the overlapping circles of the Olympic rings. Ideas and principles get shared across the different areas of law.

What if we just started from scratch, and rewrote our law anew? That project would be enormous. (Brexit is an enormous legal project, and that only involves the past 50 years of legal integration.) But anyway, the following points are worth noting. Yes, some areas of the law need modernising, or just plain improving. Lawyers should always be alert to the benefits of good reform. But some areas of the law work well. Any new law might look different from what we have now, but why give up what works? And any new law will soon enough find itself growing stale, or facing unforeseen challenges, as society continues its wayward journey. No law will suit society perfectly for all time.

If law is this patchwork quilt, how do we divide it up, to make it accessible to study? The tendency is to divide the law according to the problem. The Broken Promise. The Breach of Trust. Tort law is a collection of just such problems: The Careless Accident; The Ruined Reputation; The Inconsiderate Neighbour (and many others besides).

Finally, it is worth remembering that not every wrong is actionable. Life has its natural disappointments. Accidents sometimes happen. There is not always a defendant to blame, or at least to sue. For example, not every promise is enforceable in contract law. And in tort law, a defendant might say something rude about the claimant, and yet incur no liability in the tort of defamation. Or a defendant might play their music loudly enough to annoy their neighbour, but without incurring liability in the tort of private nuisance. Or a driver might crash their car, but without incurring liability in the tort of negligence, because the accident was unavoidable despite the driver taking all reasonable care. Only in some cases of misbehaviour or misadventure will the law intervene. (And we can always ask whether tort law draws that line in the right place.)

The rest of this chapter considers the following issues: what is the function of tort law; how does tort law fit with other areas of law; and how does tort law change over time?

As you read

• Be aware that tort law is multi-faceted because it has to address a wide variety of circumstances.
• Consider whether all these circumstances should be addressed by tort law. Perhaps they should be addressed in other ways – or not at all.
• Remember that tort law continues to evolve, as it refines itself, or responds to novel situations or changing social attitudes.
• Consider how tort law might be further improved.

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1.1 The functions of tort law

The ingredients of individual torts might make them more or less straightforward. But tort law as a whole is diverse and complex. The following functions of tort law have been variously identified by authors and judges: to provide compensation for harm suffered; to vindicate people when their rights have been infringed; to ensure activities are carried out in an economically efficient way; to deter undesirable behaviour; to allocate blame. We shall consider each in turn.

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1.2 Compensation

Compensation is often seen as the predominant purpose of tort law. For example, in Fairchild v Glenhaven Funeral Services Ltd,¹ Lord Bingham said: ‘The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another.’ While compensation does often loom large, focusing solely on compensation misses a number of important points.

1[2002] UKHL 22, [9].

First, some torts are complete without proof of any actual damage. Such torts are said to be ‘actionable per se’.² They include torts like trespass to land, and false imprisonment. We might say, these types of behaviour are considered sufficiently wrong that they are proscribed even if they do not cause any harm.

2Pronounced ‘purr say’.

Second, instead of damages, an alternative but important remedy is an injunction. This is a court order which, typically, proscribes certain behaviour, in order to restrain either a threatened tort or the continuation of a current tort. In such a case, the primary purpose is to prevent harm, rather than allow it to happen and provide compensation afterwards. For example, the tort of private nuisance is where the defendant interferes with the claimant’s land or its use and enjoyment, like playing loud music late into the night. An injunction is a common remedy, to restrain an interference (here, to stop the loud noise) which might otherwise continue on and on.

Third, if a claimant does seek a money remedy, there are various measures of damages which might not be strictly compensatory. For example, exemplary damages, sometimes called punitive damages, are additional to any loss which the claimant might have suffered. They seek to disgorge the defendant of any ill-gotten gains, to ensure that tort (like crime) does not pay.

Limits to compensation

If the claimant does seek compensation for harm suffered, still there are practical hurdles. Even for an otherwise successful claimant, these hurdles include the delay of bringing a case to judgment, and the irrecoverable legal costs incurred along the way. The uncertainty of success and the need to fund litigation in the meantime put off further victims from litigating at all. Thereafter there still remain the difficulties of enforcing a judgment and recovering any money. And all this assumes that the claimant successfully proved every item of loss (right down to every day off work, and every box of plasters bought from the supermarket). As a matter of practice, very few victims will be fully compensated by successful tort litigation.

Further, the law itself does not always guarantee that harm will be compensated: some harms do not attract any compensation; some harms attract compensation more in name than in substance; and with those harms which do attract compensation, still the harm must have been inflicted through proscribed conduct. We shall take each of these points in turn.

First, some harms do not attract any compensation. One example is economic loss suffered by the claimant as a result of damage caused to a third party’s property. In Weller & Co v Foot and Mouth Disease Research Institute,³ a virus escaped from the defendant research institute, and infected cattle. Quarantine restrictions meant cattle markets were closed. The claimants were auctioneers, and so lost money. But this type of loss was held by the court not to be recoverable, since it was parasitic on damage to property which was owned not by the auctioneers, but by third parties (the cattle owners).

3[1966] 1 QB 569 (QBD).

Explaining the law

Every act we do has consequences. It is like dropping a pebble into a ...