The Anatomy of Tort Law

Peter Cane

• Publisher: Hart Publishing
• Year: 1997
• ISBN:
  9781847316738
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto del risarcimento per fatto illecito

Written to be accessible to all readers with a basic knowledge of tort law, this book adopts an approach which is both easily comprehended, yet also innovative and illuminating. It sets out a new and theoretically stimulating analysis of the law of tort, in which the subject is reconceived as a system of ethical rules and principles of personal responsibility. As such it can be viewed as a series of relationships between protected interests, sanctioned conduct and sanctions. These are the "building blocks" of tort law. Beyond affording a means of comprehending the fragmentary nature of tort law, the book, equally importantly, seeks to develop understanding of its relationship with other areas of the law of obligations. It also permits clearer understanding of the relationship between common law and statutory torts and throws fresh light on the links between tort law and its functions.

1. DISMANTLING TORT LAW

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INTRODUCTION

As its name implies, this book is about the structure of tort law. Its starting point is the proposition that the law of tort can be viewed as a system of ethical rules and principles of personal responsibility for conduct. This approach is in contrast to the traditional one of seeing tort law as made up of a number of discrete “torts”, that is, legal formulae which can be used to obtain remedies from courts or as bargaining counters in out-of-court negotiations. I see tort law as a collection of causes of action (or “heads of liability”) each made up of three main components: an interest protected by the law, some conduct which the law sanctions, and a remedy or sanction by which the interest is protected and the conduct is sanctioned. The structure of causes of action in tort is “correlative”; that is, every cause of action in tort is a two-sided affair made up of elements relating to the plaintiff and elements relating to the defendant. In Chapter 1, I explain the relationship between the traditional approach to the exposition of tort law and my “personal responsibility” approach; and I give an account of the basic structure of tort law in terms of correlativity, protected interests, sanctioned conduct and sanctions.

In Chapters 2, 3 and 4 respectively I offer an account of the sorts of conduct which tort law sanctions, the sorts of interests it protects and the sanctions by which it does the protecting and the sanctioning. In Chapter 5 I draw together the strands of the previous three chapters and show how the various interests protected and the various types of conduct sanctioned by tort law are combined into heads of liability, defined in terms of protected interests and sanctioned conduct, which trigger the various sanctions available in tort law. This chapter provides the reader with a whistle-stop tour of tort doctrine. It provides a range of new perspectives on a well-cultivated landscape. What I do in Chapters 2–5 is to break tort law up into its constituent building blocks and then put those blocks back together in a novel way which not only illuminates the inner workings of tort law but also lays the groundwork for a better understanding of the relationship between tort law and other areas of the law, such as contract law and criminal law. Against the background of the idea of personal responsibility, this account offers fresh insight into, and greater understanding of the significance of, many aspects of tort doctrine.

It is, of course, not only tort law which can be described in terms of the ethics of personal responsibility, and it is not only tort law which has a correlative structure. In this light, Chapter 6 tackles two difficult questions raised by my approach: what, if anything, holds together the body of law traditionally referred to as the law of tort and gives it “unity”; and in what way, if any, is that body of law distinctively different from other bodies of law which are concerned with personal responsibility (such as contract law). The basic argument of this chapter is that legal categories such as tort and contract are useful, if at all, only for educational purposes and to facilitate access to legal materials. This conclusion will not be very congenial to those who wish, for whatever reason, to preserve sharp conceptual divisions between different areas of civil law. Amongst other things, it has important implications for the issue of concurrent liability and for modes of analysis of the “law of obligations”.

Finally, in Chapter 7, I explore the implications of my approach for the relationship between the doctrines, rules and principles of tort law on the one hand, and the functions and effects of the law on the other. This relationship is complex because practising lawyers and their clients often seek to use tort doctrine for pragmatic purposes which may conflict with the principles of personal responsibility which underlie that doctrine. The basic thesis of this chapter is that the meaning and value of tort law viewed as a set of ethical rules and principles of personal responsibility can be properly understood only if account is also taken of its functions and effects. This is because there is a symbiotic relationship between the rules and principles of tort law and its functions and effects.

TORTS AS RECIPES

In this first chapter, then, I shall argue that the traditional approach to tort law conceals its nature as a system of ethical principles of personal responsibility. My claim is that organizing the law around the ideas of correlativity, protected interests, sanctioned conduct and sanctions provides a much deeper understanding of its inner logic than the traditional approach, and also a more satisfactory way of sorting out the relationship between tort law and other legal categories. In my view, the framework I offer provides, both for theoretical and practical purposes, a much better way of thinking about and organizing tort law than the traditional division of the law into “torts”.

If you look at a typical text on the law of tort in any common law jurisdiction (that is, where the applicable law is, or is derived from or based on, English law), you will find the law discussed and expounded in terms of a number of “torts”. These include the tort of negligence, the tort of nuisance, the tort of conversion, the tort of defamation, and so on. Indeed, one author has constructed an “alphabetical list of known torts” containing more than 70 entries.¹ This approach to expounding tort law I shall call the “common law approach”. This approach is in notable contrast to that adopted in civil law jurisdictions (that is, where the law is derived from or based on Roman law). France provides, perhaps, the most extreme example of the civil law approach: there, much of the law of delict (or “tort”) is derived from a few very general provisions in the Code Civil, such as Article 1382: “Every act whatever . . . which causes damage to another obliges him by whose fault the damage occurred to repair it”.² This provision has two notable features: first, it is very general, and secondly, it bases liability directly on a principle of personal responsibility for damage caused by faulty conduct. The common law approach, by contrast, has at least two important characteristics relevant to the present discussion. First, and putting the point very crudely, whereas a French lawyer might see the process of deciding particular legal disputes as involving the application of broad general principles to particular facts, the common lawyer is more likely to think of that process in terms of determining whether a particular fact situation fits into a framework of rules and quite narrow principles which define the elements of “a tort”. Secondly, the common lawyer tends to view the elements of particular torts as technical requirements of the law rather than as applications of ethical principles of personal responsibility concerned with what people ought or ought not to do, such as that people ought not to cause damage deliberately. The common lawyer’s understanding of the law of tort consists largely of knowledge about the technical definitions of legal terms and concepts and about fact situations which have, in the past, been held to give rise to tort liability. The typical common lawyer would not (in a professional capacity, at least) think of the law of tort as a set of ethical principles of personal responsibility, principles about how people ought and ought not to behave in their dealings with others.

The common law way of thinking about tort law can be traced historically to the “forms of action” which were central to the “formulary system” of pleading cases before courts.³ Under a formulary system of litigation, an action can be started (and will succeed) only if the facts of the plaintiff’s case fit one of the formulae which the courts recognize, or if the plaintiff can persuade the court to recognize a new formula. In the heyday of the English formulary system, the courts would process a claim only if it could be and was appropriately “packaged”. If a container (called a “writ”) of the right shape was not available, the claim would fail even if, had the court processed the claim, it would have found the claim to be meritorious. In short, under a formulary system, the way a claim is packaged is as important as the claim’s strength. Changing the metaphor, forms of action were a bit like recipes — recipes for success in litigation. The prime concern of the lawyer in a formulary system is to follow the recipe faithfully.

The English formulary system was gradually replaced in the 19th century by the modern system under which what matters (in theory, anyway) is not how a complaint is packaged but whether the complaint is a good one. In other words, what is important is not the “form” of the claim but rather whether it states a “good cause of action”. The forms of action have been replaced by causes of action. A cause of action provides a court with a legally recognized ground for granting a remedy to a claimant. This change from forms to causes of action was of enormous importance in the history of the law and of legal thought because it shifted attention away from the mechanics and procedure of making legal claims (were they properly packaged?) to the substance and merits of claims.⁴ Under a formulary system it is impossible to understand the law without also understanding procedures for litigating, because claims have to be packaged in a way which is recognized by the processing authorities, the courts. By contrast, the typical modern text on the law of contract or tort, for instance, contains almost nothing about procedural law but is primarily concerned with the “substance” of the law or, in other words, with the grounds on which courts will award legal remedies.

Because, in practice, the procedures for making legal claims have subtle and complex effects on the substance of the law relevant to resolving such claims, this distinction between procedure and substance is, to a certain extent, misleading — but only to a certain extent. We can gain a great deal of useful knowledge about the law without knowing much, if anything, about the procedures for litigation. One important reason for this is that civil law (as opposed to criminal law), of which the law of tort is a “department”, has both backward-looking functions and forward-looking functions. The backward-looking functions are concerned with the resolution of disputes and the provision of remedies. The procedures which were central to the formulary system were procedures for resolving disputes in the courts and for obtaining judicial remedies. Even under our modern, non-formulary system, a knowledge and understanding of relevant procedures for resolving legal disputes is important to success in making a legal claim. This is true whether the claim is heard by a court or, as is most commonly the case, it is resolved by an out-of-court settlement. For instance, if a legal claim is not made within a specified period (the “limitation period”), it will fail, however strong the substance of the claim might be; and one of the commonest causes of complaint against solicitors is delay beyond the limitation period in making legal claims.⁵

One of the forward-looking functions of civil law is to guide conduct. If people know the sorts of conduct the law allows and those it prohibits, or the interests which the law protects and those it does not, people can attempt to plan their lives in such a way as to minimize the chance of being involved in a legal dispute or of breaching the law. Knowledge of procedures for resolving disputes is quite unimportant if one’s interest is in using the law in this prophylactic or precautionary way. Moreover, for most people most of the time, the law is much more important as a guide to conduct than as a set of rules for resolving disputes. Relatively speaking, only a tiny proportion of human conduct which is regulated or affected by law gives rise to legal disputes which become the subject of litigation or other formal modes of dispute resolution. For this reason alone, knowledge and understanding of the substance of the law is much more important than knowledge of the procedures of litigation.

The emergence of legal textbooks as we know them today was partly a result of the demise of the formulary system. This encouraged lawyers to think about the substantive principles underlying the forms of action and to organize causes of action according to these principles. One of the most important products of this new intellectual approach was the development of what is now often referred to as “the classical law of contract”, that is, a set of rules and principles governing the formation and termination of contracts. Exposition of these rules and principles (concerned with offer and acceptance, consideration and so on) occupies a substantial part of most modern contract texts; and although the law recognizes specific contracts, such as contracts for the sale of goods and contracts of guarantee, which are governed by special sets of rules, these special rules are usually seen as applications or adaptations of the general principles of the law of contract to meet particular circumstances. No one doubts that we have a law of contract (singular) rather than (or, perhaps, in addition to) a law of contracts (plural).

However, although the forms of action were replaced by causes of action, the thinking underlying the formulary system continued to exert a powerful influence on the way textbook writers (and courts) thought about the law in general and tort law in particular. So, for instance, some of the old forms of action, such as trespass or nuisance, took on new life as causes of action: and today, texts on the law of tort still contain sections dealing with trespass and nuisance in their various manifestations. Furthermore, in certain respects, such causes of action are just as formulaic as the forms of action were. If some “element” of a modern cause of action “in tort” is not present in the plaintiff’s claim, the plaintiff may lose even if some notion of fairness or justice would suggest that the plaintiff should win. For instance, since the days of the formulary system, it has been the law that in order to succeed in an action in nuisance, the plaintiff must have an “interest in land”. This means, for example, that if a family has noisy neighbours, the only member of the family who can bring a nuisance action against the neighbours is the member who owns or rents their house, even if the whole family suffers equally from the noise. In some contexts, this rule is now thought by many to produce unsatisfactory results; but judges have had great difficulty in deciding whether to allow a person who does not have an interest in land to bring a nuisance action or whether, instead, the law should recognize a new tort which would not be encumbered with the “interest in land” requirement and which might be used to deal, for instance, with cases of “harassment” of people in their homes, whatever the nature of their interest in the property.⁶

On the other hand, abolition of the formulary system did have at least one effect of fundamental importance on the law of tort. This effect took some time to develop, reaching maturity in 1932 in the decision of the House of Lords in the famous case of Donoghue v. Stevenson,⁷ which is commonly treated as having recognized the tort of negligence. This development exemplified the non-formulary mode of thinking about law in the sense that underlying it lay an ethical injunction of extremely wide potential scope — namely “take care not to injure your ‘neighbours’ ”.⁸ As a legal principle, this injunction is hedged about with a complex web of qualifications and exceptions; but still, the foundation of the tort of negligence is not a set of specific rules and principles such as exemplified the forms of action, but an ethical principle of great generality. Furthermore, the tort of negligence operates in a very wide range of situations to provide remedies for carelessly caused injury. Nevertheless, despite the breadth of its operation, a plaintiff can succeed “in the tort of negligence” only by persuading the court that the “elements” of the tort are present in the claim. Common law courts typically do not decide “negligence cases” in tort by reasoning from general principles but by seeing whether the plaintiff’s claim fits into a previously recognized pattern of liability; and, if it does not, by deciding whether a new pattern into which it would fit should be recognized. Donoghue v. Stevenson concerned the liability of a manufacturer of ginger beer to a woman who, it was alleged, suffered illness as a result of drinking a bottle of beer containing the decomposed remains of a snail. The leading judgment of Lord Atkin contained a very general principle (called the “neighbour principle”) sanctioning⁹ careless conduct, and much more specific principles dealing with the liability of manufacturers for defective products.

Ever since Donoghue v. Stevenson was decided, there has been debate about the status of the neighbour principle: is it a legal principle which can be used as the basis for deciding particular cases, or is it just an ethical and aspirational statement of little or no legal force? In the 1970s and 1980s in England some courts appeared to opt briefly for the former view, but now the latter approach is preferred. Courts in some other common law countries (such as New Zealand and Canada) still profess adherence to the former approach, but in practice tend to decide negligence cases in tort in much the same way as the English courts — that is by developing detailed rules and principles to deal with individual cases and resisting the idea that such rules and principles can be deduced in any straightforward way from a general principle such as “take care not to injure your neighbours”.

Despite the abolition of the formulary system, the prevalent approach to tort law is still essentially formulaic. Under this approach, the modern torts are treated as formulae, or sets of technical legal rules which define the conditions for success in litigation: winning in a tort action depends largely on finding a formula which fits one’s case. Causes of action in tort operate in a similar way to the forms of action — they regulate and shape the resolution of legal disputes by litigation and other modes of dispute settlement. However, causes of action in tort are also important in relation to the forward-looking functions of the law, because through them we organize the substantive law of tort liability into manageable portions. A lawyer advises a client whether planned action might attract tort liability by surveying the causes of action in tort and determining whether the proposed activity falls within any of them.¹⁰ The mind of the tort lawyer, whether as litigator or adviser, tends to be dominated by the recipes for forensic success which the individual torts represent.

Does it matter whether or not we take a formulaic approach to the law of tort? Different legal actors might answer this question differently. A practising lawyer whose concern is to advise a client about what a court will do or to persuade a court to decide in the client’s favour is well-advised to present the client’s case in...