Unlocking Torts

Sanmeet Kaur Dua, Chris Turner

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9781351713597
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Tort law is a core element of every law degree in England and Wales. Unlocking Torts will ensure you grasp the main concepts with ease. This book explains in detailed, yet straightforward, terms:

• Negligence and negligence related torts including occupiers' liability and employers' liability;
• Land based torts such as trespass, nuisance and Rylands v Fletcher;
• Trespass to the person;
• Defamation and other torts relating to reputation;
• Economic torts, breach of a statutory duty, vicarious liability, defences and remedies.

The fifth edition is fully up to date with key case law including the recent decision of Robinson v Chief Constable of West Yorkshire Police [2018] UKSC and Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 amongst others.

The Unlocking the Law series is designed specifically to make the law accessible. Each chapter opens with a list of aims and objectives and contains diagrams to aid learning. Cases and judgments are prominently displayed, as are primary source quotations. Summaries help check your understanding of each chapter, there is a glossary of legal terminology. New features include problem questions with guidance on answering, as well as essay questions and answer plans, plus cases and materials exercises. All titles in the series follow the same formula and include the same features so students can move easily from one subject to another. The series covers all the core subjects required by the Bar Council and the Law Society for entry onto professional qualifications as well as popular option units.

1

The origins and character of tortious liability

AIMS AND OBJECTIVES

After reading this chapter you should be able to:

■ Explain the basic character of torts

■ Identify the basic principles of tortious liability

■ Explain the aims of tortious liability

■ Distinguish the interests protected by the Law of Torts

■ Recognise the relevance of specific mental states in pursuing tort actions

■ Discriminate between fault liability and no fault liability

■ Discriminate between joint liability and several liability and recognise when and why contributions can be made between different tortfeasors

■ Identify when human rights legislation impacts on the Law of Torts

1.1 The origins of tort

The law of tort, or torts, is part of the English common law which has developed incrementally since Norman times. Academic writers are not agreed whether there is a law of tort or a law of torts. A law of tort implies some general common rules relevant to all parts of the law. A law of torts recognises that there are various separate and distinct aspects but also implies that the separate parts have something in common. The writer of this book inclines to the idea that there is a law of torts, each tort being governed by similar underlying principles. It is a nice subject for a debate but of little practical importance.

tort
Tort is a French word meaning ‘wrong’ – so it is a general word used to describe civil wrongs

Although some modern torts have been created by statute, the law is still generally to be found in common law principles. The origins of torts can be traced back to the fourteenth century when the word ‘trespass’ was given a much wider legal meaning than it has today. It originally referred to ‘any direct and forcible injury to the person, land or property (chattels)’.

trespass
Torts based on trespass tend to involve interference, e.g. with rights over land, or property or indeed with their ‘bodily integrity’

Trespass was one of two medieval forms of action, the second being ‘trespass on the case’ or simply ‘case’. Case covered ‘injury which was consequential to a wrong but the wrong was neither forcible nor direct’.

actionable per se
An action for a tort where the claimant does not have to prove that damage occurred only that the tort occurred

claimant
The person who brings an action in tort

The distinction can still be seen in the law of torts today – torts which are actionable per se, i.e. without proof of damage, such as trespass to land and trespass to the person, generally originate from the old form of trespass, while those torts which require proof of damage, for example negligence and nuisance, generally come from case.

In the past, the distinction was of crucial importance as using the wrong form of action could result in the claimant being left without any remedy. Today, although there may be cost penalties, the Rules of Court allow for the amendment of pleadings (subject to the provisions of the Limitation Act 1980 which are discussed in Chapter 19). The legal historian will be able to find traces of the old rules in modern law but for practical purposes the distinction is of little relevance. In his judgment in United Australia Ltd v Barclays Bank [1941] AC 1, Lord Atkin said:

JUDGMENT

‘When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course for the judge is to pass through them undeterred.’

In Letang v Cooper [1965] 1 QB 232, Lord Denning MR remarked:

JUDGMENT

‘These forms of action have served their day. They did at one time form a guide to substantive rights; but they do so no longer. Lord Atkin told us what to do about them.’

CASE EXAMPLE

Letang v Cooper [1965] 1 QB 232

The claimant decided to sunbathe on a grass area which was also used as a car park. The defendant drove in. He did not see the claimant lying on the grass and ran over her legs. The problem for the claimant was caused by the date on which she tried to commence her action. She was out of time to bring an action for negligence (a descendant of case) where the usual time limit is three years. If she was able to use trespass, then the action could stand as the time limit was six years. It was argued that the old rules should apply, her injury was direct and forcible.

The Court of Appeal held that the old rules no longer apply. Intentional injury will give a claim based in trespass, but unintentional injury gives a claim based in negligence. The claimant was unsuccessful.

Before leaving this introduction, mention should be made of the tort of defamation. Slander has its roots in the old ecclesiastical law. Libel stems from the old prerogative law which regarded certain written statements as prejudicial to the state. Both libel and slander eventually found a home in the common law courts. As will be seen in Chapter 14, the tort of defamation continues to have its own unique characteristics.

1.2 General principles of liability

1.2.1 The character of torts

Anyone who teaches law is certain to be asked ‘What does tort mean?’ If only there was an easy answer! It seems to be generally accepted that the word itself is a surviving relic of Norman French and means simply ‘wrong’. This does not tell us very much. Winfield defines the meaning as follows:

QUOTATION

‘Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.’

W V H Rogers, Winfield and Jolowicz on Tort (16th edn, Sweet & Maxwell, 2002)

The definition is helpful in that it shows that there are three elements:

1. a duty fixed by law – as we shall see this does not necessarily, or indeed usually, mean fixed by statute but a duty which the courts have recognised;

2. the duty must be owed generally – as we shall see individual torts have been developed so that a general duty is owed to any person in a position to bring an action based on that tort;

3. the breach of duty must entitle the claimant to general damages.

The nature of the duty varies from tort to tort. For example where negligence is alleged, the duty is to take reasonable care; in the case of trespass to the person the duty is to refrain from infringing a person’s bodily integrity.

damages
Refers to the compensation awarded by the court in a successful claim

The class of persons to whom a duty is owed may be limited. For example in negligence, a duty is owed only to those who ought reasonably have been foreseen as likely to be affected by failure to take reasonable care; in trespass to the person the duty is owed only to those directly affected by the action.

The injury sustained must be of a type recognised by the law. In negligence for example it took many years for the courts to recognise that psychiatric harm was as much an injury as physical damage. In trespass to the person and other torts which are actionable per se it is unnecessary to prove damage, the infringement of the right being regarded as injury enough.

1.2.2 The functions and purposes of torts

The aim of the law of torts is twofold:

1. to compensate someone who has suffered a wrong at the hands of the defendant; and

2. to deter persons from acting in such a way that another person’s rights are infringed.

defendant
The person against whom a claim in tort is made

Compensation

Clearly a person who has suffered injury is entitled to financial compensation which is intended, so far as possible, to put them in the position they would have been in but for the wrongdoing of the defendant. Where the damage is purely to property this may be possible, but real difficulty arises in cases of personal injury. The rules which guide the courts in such matters are discussed in detail in Chapter 19.

The award of damages can also be regarded as ensuring that an injured party receives justice in that loss caused by the tort is compensated. In some cases the ‘victim’ would not agree that justice has been done. How often does the media report a case where a ‘victim’ makes it clear that the money is in reality no compensation for the loss which has occurred? While the finding of liability may go some way to satisfy the injured party’s desire for vengeance, having ‘had their day in court’, it is only rarely that a punitive element of damages is payable.

From the defendant’s point of view, the concept of justice is also debatable. The amount of damages is assessed purely by the effect on the claimant. A defendant who has caused serious personal injury to the particular victim because of some personal characteristic of that victim will find that the award far exceeds the amount which would have been payable to another, less vulner...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Guide to the book
• Acknowledgements
• Preface
• List of figures
• List of tables
• Table of cases
• Table of statutes and other instruments
• 1 THE ORIGINS AND CHARACTER OF TORTIOUS LIABILITY
• 2 NEGLIGENCE: DUTY OF CARE
• 3 NEGLIGENCE: BREACH OF DUTY
• 4 NEGLIGENCE: CAUSATION
• 5 NEGLIGENCE: DEFENCES
• 6 NEGLIGENCE: SPECIFIC DUTY SITUATIONS
• 7 OCCUPIERS’ LIABILITY AND LIABILITY FOR DEFECTIVE PREMISES
• 8 TRESPASS TO LAND
• 9 NUISANCE
• 10 STRICT LIABILITY AND LAND – RYLANDS v FLETCHER
• 11 LIABILITY FOR ANIMALS
• 12 TORTS RELATING TO GOODS
• 13 TRESPASS TO THE PERSON
• 14 DEFAMATION
• 15 THE ECONOMIC TORTS
• 16 BREACH OF A STATUTORY DUTY
• 17 EMPLOYERS’ LIABILITY
• 18 VICARIOUS LIABILITY
• 19 REMEDIES AND LIMITATIONS
• Appendix 1
• Appendix 2
• Glossary of legal terminology
• Index