Essential Tort Law for SQE1

Wendy Laws

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000428469
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Essential Tort Law for SQE1 explains the key principles of tort law in a clear, easy-to-follow style. Principles are introduced and illustrated with reference to practical examples. The book demonstrates the skill of client case analysis, taking a clear and structured approach to analysing the facts of a client's case and then applying the relevant principles. It also includes a range of supportive features:

• Revision points: Each chapter concludes with a concise list of key revision points.
• Problem questions: To test understanding and analytical skills applied to practical scenarios. A companion website also provides suggested answers.
• Multiple choice questions: Each section of the book provides multiple choice questions following the SQE1 question format (with answers to enable you to test your knowledge). Further multiple choice questions and answers are also provided on the companion website.

The first in a series of books aimed at those preparing for SQE1, this concise and accessible text provides a clear understanding of the tort element of SQE1 and enables you to test your assessment skills.

PART 1
Introduction to claims and remedies in tort

1
Harms, remedies, and client case analysis

DOI: 10.4324/9781003133698-3

1.1 Chapter overview

This chapter provides an introductory overview of claims in tort. It begins with a broad overview of the range of harms covered by tort law – for example, personal injury, damage to property, interference with land, and interference with reputation. It then introduces the remedies that tort law can provide for those harms, such as damages and injunctions.

Then the chapter introduces the skill of client case analysis – that is, the use of a clear structured framework to analyse the client’s claim to determine the appropriate tort to provide a remedy for the harm suffered. It begins with identifying the relevant tort by reference to the type of harm suffered. It then looks at identifying the parties to the claim and establishing the elements of the claim.

1.2 Introduction to the range of torts

Claimants in tort seek remedies for harm suffered. For example, a client injured in a road accident seeks damages; a person whose neighbour keeps them awake with loud music may want to force them to stop. So, the claimant needs to understand which tort would be appropriate to provide a remedy for the type of harm suffered (and the defendant needs to understand their potential liability).

The following table sets out some of the common types of harm, the torts that might be applicable, and the possible remedies.

As you look at the table, you should notice that there are overlaps. Some types of harm could have a remedy in more than one tort. In cases where more than one tort may be applicable on the facts, the claimant is likely to include all of them in their claim (though they will only be compensated once for the same harm).

Do remember that this is just an introductory overview. Each of the torts mentioned will be explained in more detail in the following chapters. Also, the remedies mentioned here are explained further in the following section of this chapter, as well as in later chapters.

So, do not worry about the details of each tort here. Our aim is simply to show how different types of harm should lead to consideration of different torts.

Harms, torts, and remedies

Type of harm suffered	Torts to consider	Possible remedies
Personal injury-caused carelessly	Negligence Occupiers’ liability (if caused by the state ofthe premises)	Damages
Damage to property-caused carelessly	Negligence Occupiers’ liability if caused by the state ofthe premises)^1	Damages
Personal injury-even if caused without carelessness^2	Product liability under the Consumer Protection Actl987-wheve caused by a defect in a product	Damages
Damage to property-even if caused without carelessness^3	Product liability under the Consumer Protection Actl987-wheve caused by a defect in a product. Subject to exceptions for some types of property	Damages
Interference with the claimant’s bodily integrity (use of force, fear of force, imprisonment)	Trespass to the person	Damages
Direct interference with the claimant’s possession of land	Trespass to land	Damages Injunction Declaration
Interference with the claimant’s useand enjoyment of land This may include interference by things such as noise, smoke, and smells. Damage of this kind is called ’intangible’ damage because it does not make a physical impact (’Intangible’ means ’cannot be touched’.)	Nuisance	Damages Injunction
Interference with reputation	Defamation	Damages Injunction
Disclosure of private information	Misuse of private information	Damages Injunction

¹ An occupier’s liability to a trespasser does not extend to damage to the trespasser’s property. See Chapter 14.

² There is nothing to prevent the Consumer Protection Act 1987(‘CPA’) from also applying to carelessly caused harm. So, if damage is caused by a defect in a product, and carelessness can be established, there is nothing to prevent a claimant from relying both on a claim in negligence and under the CPA. However, where carelessness cannot be established, then only the CPA is applicable.

³ See note 2 above.

You probably noticed that the table does not include a separate heading for employers’ liability. This is because employers’ liability is part of the tort of negligence. It does have a separate chapter in this book because it has some special principles; but you should remember that it is still a claim in negligence.

Similarly, you may have come across claims described as ‘medical negligence’ or ‘professional negligence’. Again, these are just specific applications of the general principles of the tort of negligence.

Also, the table does not mention vicarious liability. This is because vicarious liability is not a type of tort. It is a principle under which one person (usually an employer) can become liable for torts committed by another (usually an employee). Again, this is explained much more fully later (see Chapter 12).

1.3 Introduction to remedies in tort

As we began to see in the previous section, for a lawyer in legal practice, tort law is all about remedies. Clients consult a lawyer either because they have suffered harm and are seeking a remedy or because they are facing a claim made against them by someone who alleges that they have caused harm. The person who has suffered harm (the claimant) wants to obtain a remedy against the person who caused it (the defendant).¹

1 Very often, a defendant will have a policy of insurance under which their insurer will pay any damages the defendant is ordered to pay to the claimant. In such a case, the insurer will deal with the claim on the defendant’s behalf. So, it will be the insurer who consults lawyers and conducts the litigation or negotiations with a view to settlement. However, the proceedings are conducted in the defendant’s name. So, when cases are reported, they show the name of the defendant, not the name of the defendant’s insurer.

The table below gives an overview of the remedies that tort law can provide. Do remember that this is just an introduction to remedies, and each of the remedies mentioned in the table will be explained more fully in later chapters.

Remedies in tort

Remedy	What is it?	What is its effect?	Example
Damages	A payment of money from the defendant to the claimant	Tocompensatethe claimant for the harm suffered (so far as money can do so).^1	Aclaimant is injured in a road accident and their car is damaged. An award of damages will result in a payment of money to the claimant to compensate them for: the pain and suffering caused by the injury, loss of earnings and medical expenses, etc, and the cost of the damage to their car.
Injunction	An order of the court directing the defendant to do something or refrain from doing something An injunction is a discretionary remedy. The court will decide, in the exercise of its discretion, whether or not to grant an injunction in the circumstances of the claimant's case.	An injunction can prohibit the defendant from carrying out activities that a mount to a tort (a prohibitory injunction) An injunction could also requirethe defendant to take specified positive action (a mandatory injunction)^2	A defendant plays loud music until late every evening, so committing the tort of nuisance. An injunction could be granted to prevent the defendant playing music after 9.00 pm on weekdays. A defendant has built a wall which interferes with the claimant's established right to have access to light through a window, so committing the tort of nuisance. An injunction could be granted to require the defendant to demolish the wall.
Declaration	An order of the court which declares the rights of the parties	A declaration states the existing rights of the parties. (The court is not exercising a discretionto change the rights of the parties. A declaration simply states the parties' existing rights.)	Aclaimant and defendant are in dispute overthe location of the boundary between their land. The claimant alleges thatthe defendant has built a wall which sits on land belongingtothe claimant, so committing the tort of trespass. The court may make a declaration specifying the correct location of the boundary.

¹ This refers to compensatory damages. Other forms of damages do exist, but our focus will be on compensatory damages as these are most important in practice.

² In general, it is less common for a mandatory injunction to be granted.

The table summarises the range of remedies in tort, but some remedies are not applicable to all torts. For example, an injunction is not available as a remedy for the tort of negligence. Again, this is explained more fully as we deal with each tort and its remedies.

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