Sourcebook on Tort Law 2/e

Graham Stephenson, Graham Stephenson

• Publisher: Routledge-Cavendish
• Year: 2012
• ISBN:
  9781135341190
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

The purpose of this book is to provide a clear guide to tort law, examining the main principles and areas of the subject. It includes text emphasizing the main issues of liability. The text incorporates relevant materials, extracts from leading judgments, articles and reports of review bodies on tort law. It should prove especially useful for those who do not have access to a law library, as for those whose library is under severe pressure from users. It will be useful to those participating in seminars and tutorials and will enable them to take part in a good level of discussion.

This new edition of Sourcebook on Torts has been fully revised and incorporates the Human Rights Act 1998. The effect of the European Courts decision in Osman is now being felt, as is evident from the judgments of the House of Lords in Barrett v Enfield BC. The Law Commission's proposals on liability for psychiatric illness are included. Developments in the tort of nuisance, the defence of qualified privilege and damages are also scrutinized. Several Law Commission reports and the Social Security (Recovery of Benefits) Act 1997 are also extracted, as are other new pieces of legislation, such as the Damages Act 1996 and the Defamation Act 1996.

CHAPTER 1

INTRODUCTION

Individuals, businesses and other organisations in a complex post-industrial society suffer losses of various kinds as a result of the activities of others. Tort law is one of the areas of law primarily concerned with the question of whether these losses are to be compensated for by the person responsible for the relevant activity or whether the loss must lie where it falls, namely, with the victim. The other major area dealing with similar issues is the law of contract. Tort law is, to a lesser extent, also concerned with preventing or deterring certain types of conduct. An action in tort is a civil action, as opposed to a criminal prosecution, and is initiated by an individual, business or other organisation, rather than by the State as is usually the case in a criminal matter. An action, in normal circumstances, will be brought in tort to obtain damages, monetary compensation, for some loss sustained by the victim, for example, personal injury, damage to or loss of property, damage to economic interests or loss of reputation.

The word ‘tort’ is French for ‘wrong’, and we can therefore say that a tort is a civil wrong. Tort law comprises the rules of liability which dictate whether the defendant's activity constitutes a civil wrong, thus enabling the court to grant a remedy, that is, compensation to the claimant victim. This seems straightforward enough but there are obvious difficulties with the explanation of what is tort law in view of the diverse nature of the causes of action which appear to fall within its scope. It is common in an introduction of this kind to discuss the issue of whether there is a law of tort or torts. The search for some unifying factor underlying all causes of action in tort, thus enabling us to distinguish between tort actions and other types of action, for example, actions for breach of contract, would appear to be a vain one. Indeed, the fragmentary nature of tort law would seem to militate strongly against discovery of any such principle. It might, therefore, be more appropriate to talk of a law of torts, a rather loose collection of random causes of action, a residual category of civil wrongs falling outside and independent of the law of contract, the other major source of civil wrongs. If this view is taken, it must nonetheless be acknowledged that the major part of the area covered in this and other books on tort law is within the scope of one single tort, that is, negligence, but by the same token, it has to be recognised that there are other causes of action, totally independent of negligence, with their own specialised rules of liability which clearly fall within the subject matter of tort law.

Attempts have conventionally been made to assimilate the various causes of action within the tort umbrella into groupings to provide some coherence or structure to the subject. For example, it is possible to arrange the subject in terms of the interests protected, such as, personal safety, reputation, property and economic interests, and group the torts together which offer some protection in relation to that particular interest. A number of torts protect the interest in personal safety, that is, negligence, trespass to the person (assault and battery, and false imprisonment), public, and possibly private, nuisance, and arguably, the tort known as the rule in Rylands v Fletcher. Property interests in goods are in the main protected by the torts of negligence and interference with goods, whereas interests in land are covered by the actions for trespass to land, under the rule in Rylands v Fletcher and in nuisance. Interests in reputation are protected by the defamation actions of libel and slander, whilst economic interests are within the scope of the so called economic torts, deceit and to a limited extent, the negligence action. Alternatively, the grouping could be based on the level of the defendant's blameworthiness, namely, torts requiring proof of intention on the part of the defendant, those whose liability rules are founded on a lack of care established against the defendant, and those where liability is imposed irrespective of fault, namely, the strict liability torts. The intentional torts would include trespass to the person and land, interference with goods and deceit by way of illustrations. Negligence would clearly constitute the paramount example of a tort based on the defendant's carelessness, and product liability, nuisance and the rule in Rylands v Fletcher, on the face of it at least, would be prime examples of strict liability torts, although it has to be pointed out that the former was originally based on common law negligence and the latter two have in modern times come under severe pressure from the all embracing negligence action as we shall see in the relevant chapters. Neither of the two approaches is entirely satisfactory, but the latter approach has been adopted in the main in this book. It has to be borne in mind, however, that some torts will protect more than one interest and that the degree of protection offered may fluctuate depending on for which interest protection is being sought. For example, in the earlier chapters, we shall see the vast gap in protection afforded by the negligence action to the personal safety and property interests on the one hand and the much less favoured economic interests on the other.

TORT AND OTHER TYPES OF LIABILITY

It is traditional at some point in an introduction of this nature to compare tort liability with the types of liability with which it has a close connection, with a view to marking out more clearly the territory of the subject. Tort law has more in common with the law of contract, but there are connections and overlaps with criminal law, actions for breach of trust and the more recently recognised law of restitution. We have already distinguished between civil wrongs, which are pursued at the initiative of an individual, and criminal matters, which are normally taken up by the state in the public interest. The function of the criminal law is usually stated as being the punishment of the offender, by fine or imprisonment, whereas tort law is essentially concerned with compensating the victim of the tort by a damages award made against the perpetrator. Criminal law also seeks to affect the future behaviour of the transgressor, but also that of others with similar criminal tendencies. Tort law may perform this function but, as we shall see, to a much lesser extent. Some tort actions will also constitute crimes, for example, assault and battery, intentional damage to the property of others and public nuisance. In addition, criminal sanctions and a civil action may arise on the same facts in the context of a road traffic accident or an accident in the workplace. In some tort actions the court may award what are known as exemplary damages, which are clearly designed to punish the defendant, although unlike a fine in a criminal matter being payable to the state, the exemplary award is controversially handed over to the victim over and above any damages designated as compensation. The incidence of such awards is, however, less frequent nowadays precisely for the reason that such payments blur the distinction, as far as the judiciary perceives it, between criminal and civil matters. The distinction is blurred in the eyes of the public in any event by the availability of compensation orders payable to the victims of crime in criminal cases under s 35 of the Powers of Criminal Courts Act 1973 (as from 25 August 2000, see s 130 of the Powers of Criminal Courts (Sentencing) Act 2000), although this power is rather restricted in practice.

As mentioned above, tort law is more akin to contract law than any other subject. It would be easy to say that contract law is really a specialised area of tort law because of the similar origin of the two types of action but this would be to ignore the reality that contract has been treated historically as a separate subject from tort with its own independent cause of action. Indeed, there is little to choose between books on tort and contract in terms of depth, breadth and the numbers of them produced for the academic market. Taken together, tort and contract form the basis of the English law of obligations, although it would be misleading not to acknowledge the contribution to such a classification of the law of restitution and that of the much ignored area of bailment. Traditionally, contract was seen to be based on consent and tort essentially was perceived as a series of primary duties imposed by society irrespective of the consent of those making up that society. This is an oversimplification, as it must be acknowledged that many contractual duties are implied into certain types of contract irrespective of the wishes of the parties to the contract in question. For example, the Sale of Goods Act 1979 (as amended) implies terms of satisfactory quality (s 14(2)), description (s 13) and fitness for particular purpose (s 14(3)) into sale of goods contracts. There are many other examples of this and these make a significant inroad into the idea that contract is based solely on the agreement of the parties. Likewise, it is inappropriate to say that all tort duties are imposed as a matter of law. Consent does play some part in the imposition of tort duties, for example, in relation to liability for negligent mis-statement and occupier's liability. One of the major issues in recent years has been that of concurrent liability in contract and tort arising from the same facts. It now seems to be the case, after some deliberation, that its existence has been accepted.¹

The issue of the interplay between contractual and tortious liability will be returned to in Chapters 2 and, more particularly, 6 as the existence or nonexistence of a contractual duty has been considered in some cases as a relevant factor in deciding whether the defendant is thought to owe a duty of care in the tort of negligence, more especially in the cases involving claims for damage to economic interests.

It has to be recognised, however, that there are some significant differences still between liability in contract and tort. One of the most significant departures between the two causes of action concerns the purpose of the award of damages in the respective actions. In contract, the claimant is normally entitled to be placed in the position he should have been had the contract been properly performed.² In other words, the claimant is entitled to his expectation loss. In tort, the claimant is to be put in the position she was in before the tort was committed, sometimes crudely known as the out of pocket expenses rule. Other differences include differing limitation periods and tests of remoteness of damage.

Actions for breach of trust and other equitable obligations are historically separate from tort law, as the principles were developed in the Chancery court as opposed to the common law courts. Even where die claim for breach of any such obligation is met with an award of monetary compensation, it will nonetheless still be regarded as being outside the scope of tort law. The law of restitution provides some remedies which enable a claimant to recoup money, for example, money paid under a mistake of fact. This is normally regarded as being outside the subject of books on tort. The requirement to repay money in such circumstances does not come about as a result of the breach of a duty owed to the claimant, nor as a result of damage to the latter, but is based on the principle of unjust enrichment of the defendant. The law of restitution has justifiably gained considerable momentum as a subject in its own right in recent years. There is on occasions an overlap between tort law and restitution, and the claimant may seek a restirutionary remedy instead of the normal damages claim. This area of liability is covered in the leading books on restitution.³

There have been suggestions in recent years that tort law is only a part of a larger area of law known as the law of obligations. Such an area would also take in contract, restitution and bailment. It would of necessity contain a vast amount of material and from a purely pragmatic point of view it would be extremely difficult to teach or study as a single subject area. There are also theoretical obstacles, in that, as observed above, it would still be necessary to distinguish certainly at least between contract and tort actions. It is probably only true to say that tort is a major but separate part of an overall and much looser classification of the law of obligations, despite the obvious similarities with contract.

FUNCTIONS OF TORT LAW

Rather than concentrating too much time and energy on searching for some spurious unifying principle which enables us to identify tort law from other types of civil liability, effort might be more usefully directed at an inquiry into the way in which tort law operates. Howarth prefers to look at this question from the converse angle, by asking what would we miss if tort law did not exist and we were only left with contract law in the main? His answer is:⁴

…it ought to be said that abolishing the law of torts may not make a great difference at all. In theory, a great deal of it could be reinvented through implied terms in contracts, constructive (that is, made-up) trusts and orders to restore the [claimant's] property. One might remark that in countries where attempts have been made greatly to restrict the scope of tort law, in New Zealand and Sweden, for example, such developments do not seem yet to have happened. But that might have as much to do with the legal limits of imagination and the will of the judiciary as with the theoretical possibilities.

It is normal to mention in this context several aims or objectives of tort law of which we would not feel the benefit if tort law no longer existed. Monetary compensation has already been identified as a primary function, but in any list of aims would come deterrence, appeasement or vindication of rights, justice and ‘to provide a public forum in which to discuss new forms of behaviour and the consequences of new technologies.⁵

Appeasement and vindication of rights

It is fairly clear that these two aims only have a limited role to play in modern tort law and are therefore dealt with briefly together. The idea of appeasement may have been a factor in the early days of the legal system, whereby allowing an individual the opportunity to make a claim in a civil court against the transgressor would prevent the victim from resorting to some form of selfredress which might result in a breakdown of law and order. The vindication of rights function is probably more important these days and there appears to have been a resurgence in its popularity as evidenced by recent litigation in respect of large scale disasters such as the Zeebrugge and Piper Alpha incidents. Victims or the families of deceased victims are often interviewed on television, saying that they are not really interested in compensation, rather supporting the idea of the deterrence function of the law by expressing the view that nobody else should have to undergo what they or their relatives have had to go through. Of course, in relation to the civil liberties torts, for example, assault, battery and more particularly, false imprisonment, vindication of rights has a significant part to play, especially in relation to injured feelings and loss of dignity and respect, over and above any compensatory function. Such an analysis might also be applied to defamation actions. Despite this, if tort law ceased to exist, it is unlikely that, in relation to these two functions at least, much would be lost.

Justice

Justice might be perceived as requiring that a defendant be made to pay for his wrongdoing by being ordered to compensate his victim. The defendant is forced to correct or rectify the situation which he has brought about. This might have some appeal as a valid argument in the context of torts which require the proof of some element of blameworthiness on the part of the defendant, for example, trespass to the person, negligence, etc., but this analysis runs into difficulties with the torts which are categorised as strict liability in nature, where proof of fault is not an essential requirement. Of course, it might be argued that even though the defendant is not at fault in such instances, nonetheless, it is her activity which has created the risk which has resulted in the harm to the claimant, but this is difficult to rationalise in terms of wrongdoing, involving as it must a moral dimension. Justice may be more appropriately served by looking to the claimant's need for compensation rather than the defendant's moral turpitude. This, however, would take the debate into the different, and controversial, realm of distributive justice. There are serious doubts whether tort law is capable of social engineering in the redistribution of wealth in society.⁶

The arguments concerning the defendant having to pay for his wrongdoing or risk-creating are themselves weakened further by the fact that in most types of accident, any compensation paid to the tort victim will come from an insurance company, rather than the particular defendant's own pocket. Of course, the defendant may have paid something by way of premiums to the insurance company, but where the claim is for substantial damages, far exceeding the amount of those premiums, there is little scope for arguing that tort law is achieving the aim of corrective justice. As Jones observes⁷ [liability] insurance removes the connection between the wrongdoer and the claimant's compensation’. Howarth reinforces the point graphically:⁸

There is a paradox that when insurance intervenes, the higher the sum claimed in relation to the premiums paid the less the requirements of rectificatory justice are fulfilled.

There seems to be considerable doubt as to whether tort does or can serve the cause of justice in the light of the above.

Deterrence

If taken in ...