Wednesday, September 27, 2006


Tuesday 19 September 2006

I’ll start with an apology. I thought that I had posted up the first lecture already, but it seems to have disappeared. Here it is again.

We began by looking at tort generally. The word derives from the Latin tortus, which means ‘twisted’. It came to mean ‘wrong’, and it still is in French.

Defining it is difficult, my (easier) version is that tort is a legal wrong for which the law provides a remedy. It is a civil wrong in the sense that it is committed against an individual (including companies) rather than against the State.

The gist of tort law is that a person has certain interests which are protected by law. These interests can be protected by a court awarding a sum of money (damages) for infringement of a protected interest. Alternatively by the issue of an injunction, an order from a court to a defendant to either do or refrain from doing something.

Certain torts do not require fault, they are known as torts of strict liability.

Sometimes the act or omission does not give rise to a cause of action, even though the defendant causes damage (Tesco opens next door to a corner shop. Conversely, some cases are actionable even though no damage is caused! (defamation, for example).
The role of insurance is paramount. Without it the tort system would simply cease to operate.

The two main objectives of tort law are (i) compensation & (ii) deterrence, towards an individual or of a more general nature.

Any one may sue in tort, providing that they have the legal capacity to do so. A minor may bring an action through a litigation friend, but his/her position as a defendant is less likely as they would not normally be able to satisfy a judgment.

Damage caused prior to birth has always posed a problem - it was one of the principal hurdles that had to be overcome by parents of thalidomide children. Legislation has now helped, The Congenital Disabilities (Civil Liability) Act 1976 gives a child a cause of action where born disabled as a result of an occurrence occurring before or at its birth. Note that the mother cannot be held liable unless the cause of action arose out of an act of her negligent driving of a motor vehicle (insurance company pays).

The protected interests can be split into three:

(1) personal security:

An assault can give rise to an action in trespass to the person.
Injury as a result of a RTA can see an action in negligence.
Restricted freedom of liberty can lead to an action for false imprisonment.
A side issue is a person’s interest in his reputation, the tort of defamation.

In recent times psychiatric damage, as seen at Hillsborough, has been accepted; claimants have also refused to accept the words of  surgeon and brought actions for medical negligence.

(2) Property:

A person who interferes with my peaceful enjoyment of my land invites an action in nuisance, with remedies available.
I can sue for damages caused to my car in an RTA, the tort of negligence.
I can sue in the tort of conversion if someone appropriated my lap-top computer.
Trespass on my land invited an action.
Rylands v Fletcher also helps me to protect my property.

(3) Economic interests:

The law has got entangled between tort and contract as far as economic loss is concerned. The present state is that liability arises for a negligent statement, but not a negligent act.
If a person makes a malicious and untrue statement about me which causes me financial loss I may have an action.

Some torts are seen as requiring evidence of fault, and unsurprisingly are known as ‘fault-based’ torts. The obvious example is the tort of negligence This does not equate to mens rea in crime. Where no such fault is required the torts are known as ones of strict liability. Examples include liability for dangerous wild animals and defamation.

Malice in tort possesses two distinct meanings. It may be:

  1. the intentional doing of some wrongful act without proper excuse; or

  2. to act with some collateral or improper motive. This is usually referred to when malice is discussed, although if a person has a right to do something his motive is irrelevant.

Bradford Corporation v Pickles (1895) AC 587 - the defendant had extracted percolating water which flowed under his land in undefined channels, with the result that the water supply to the claimants reservoir was reduced. The defendant’s motive was to compel the claimant to buy his land at his price. The claimants action failed as the defendant had a right to extract the water and his motive was irrelevant.

Negligence in tort has several meanings. It is a tort in its own right, but it may also refer to careless conduct (which has nothing to do with a state of mind) When a court finds a defendant to be negligent, it is making an assessment of his conduct. The person who totally disregards the safety of others but does not injure them may be morally reprehensible but is not guilty of negligence. The person who tries his best and still falls below the relevant legal standard of behaviour is liable in tort for the damage he causes: Nettleship v Weston (1971) 2 QB 691.

Whether this is the correct approach depends on the purpose of the negligence formula:

If the purpose is to compensate the claimant for his injuries, then it is clearly to the claimants advantage to set the legal standard of reasonable care as high as possible. The victim of a road accident caused by a learner driver is unlikely to be satisfied if the law permitted the learner driver to argue that he had only taken three lessons and was doing the best he could in the circumstances.
If the purpose is to deter the defendant, then setting too high a standard will be counterproductive as the defendant may not be able to avoid accidents.

Strict liability is liability without proof of fault. Some torts of strict liability survive, and Parliament has created others (e.g., industrial safety matters). Some are historical relics, e.g. liability for trespassing livestock. Others, such as the rule in Rylands v Fletcher, are judicial attempts to deal with problems created by the Industrial Revolution. The rule on an employer’s vicarious liability for the torts of his employee is simply a solution to a particular problem One of the most recent additions to the body of torts has been the creation, by Parliament, of strict liability for defective products in the provisions of PART 1 Consumer Protection Act 1987.

The objectives of tort are deterrence and compensation; punishment having no place except in the case of exemplary damages: Cassell v Broome (1972) AC 1027. Such damages have been reserved for very precisely defined areas, most judges being wary of tort law possessing a punitive function.

Deterrence may be individual deterrence, the idea being that the infliction of a civil sanction will make the defendant change his behaviour and deter him from causing a similar accident in the future. Does this work? No! Most people believe that individual deterrence has no place in the law of tort.

General deterrence has the idea that tort law should aim to reduce the costs of accidents and accident prevention. Those who participate in accident casing activities should bear the costs of those activities. For example, if a car manufacturer were to be charged with the accident costs of cars in which seat belts were not installed, then the price of cars without seta belts would reflect the accident costs. Rather than impose a law forcing the fitting of seat belts, the market, through the cost of cars without seat belts, would enable people to make a choice between the cheaper cars with belts, or the more expensive ones without them.

In practice, the use of insurance again mitigates against the theory.

Compensation. This is it. It is generally accepted that the main aim of tort is to compensate victims of accidents who have suffered damage, most commonly for personal injury. At present the law shifts losses from the claimant to the defendant when the defendant has been proved to be “at fault”. Over the past few years this idea of a fault-based system has been criticised as inefficient - and I certainly agree with that!

We discussed the situation in New Zealand, which is very different to ours, as they abolished the tort of negligence over 30 years ago.

We then made some comparisons between tort and crime/contract.

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