#15595 - Introduction - GDL Tort Law

Tort Law : Introudction

• ‘A tort is an injury, other than a breach of contract, which the law will redress with damages’ (Fleming)

• eg ‘personal injury’; ‘defamation’; ‘nuisance’; ‘professional negligence’

• ‘strict liability’—automatically liable without fault. VS ‘fault liability’.

• Tortfaesor (defendant) vs wronged (claimant)

• Some torts actionable per se : possible to establish without showing you have suffered damage, without proof of loss.

• Remedy: monetary compensation, damages.

• Maxim: level of compensation must suit the tort.

• Distinguished from other wrongs:

  • Crime: crime is public law; law of tort is form of private law, between individuals.

  • Contract: Contracts give rise to duties voluntarily undertaken by a specific party owed to another specific power. Tortious duties are of general application. Law of obligations = contract law and law of tort, combined.

  • Equity: equitable remedies, such as specific performance, the trust, and the equity of redemption.

• Interests protected

  • Physical harm to person (trespass, negligence).

  • Psychiatric harm (negligence, trespass).

  • Physical harm to property (negligence, nuisance).

  • Loss of reputation (defamation--).

  • Loss of enjoyment of land (nuisance).

  • Pure economic loss (negligence, public nuisance).

  • [‘consequential’ financial loss?]

  • [Privacy (negligence, trespass to land, nuisance)?]

• Role of public policy

  • Possible to detect hand of policy in many landmark judgements.

  • Public policy particularly important in limiting the scope of ‘duty’ in negligence claims.

  • Eg consideration as to ‘floodgates’ (Donoghue v Stevenson [1932]);

  • Eg issue of insurance (Lord Denning in Lamb v Camden Borough Council [1981]; Lord Phillips in Vowles v Evans [2003].

  • Denning in Lamb v Camden: while duty of care, causation and foreseeability were all useful devices for limiting liability, ultimately it was a question of policy for the judges to decide. Ratio of the case: a defendant is only liable for the act of a third party (in this case squatters) where the third party intervention is a foreseeable consequence of the original negligence; but policy considerations and the relationship between the defendant and third party may be taken into account.

  • Eg ‘crushing liability’ on the defendant (Lord Denning in Spartan Steel v Martin [1970]);

  • Eg retributive justice and deterrence (Lords Reid and Wilberforce in Cassell v Broome [1972]).

  • Most common policy reference is to the ‘floodgates’ of litigation. Eg, recovery for ‘nervous shock’, compare McLoughlin v O’Brian [1983], where HoL arguably opened wide the floodgates; with Alcock v Chief Constable of South Yorkshire [1991], where they controlled the ‘gates’. Key to understanding is found in policy.

• Fault liability (requirement of fault): sometimes necessary to show that the tortfeasor, as well as carrying out a particular act, did so with a particular state of mine, or without sufficient care. Most torts require proof of ‘fault’ on part of defendant. This can be intentionality, or negligently, or maliciously.

  • Malice will not usually convert a lawful action into a tort (Bradford [1895]).

  • Fault liability limits the number of actions that can be successful, keeping floodgates of litigation tightly closed.

  • Arguments against requiring fault: insurance; unjust.

• Strict liability: some torts, are committed once the relevant act/omission is completed, without any necessity to prove a particular state of mind.

  • Eg, rule of Rylands v Fletcher, a judge-made example.

  • Others laid down in statute: such as those arising out of the Consumer Protection Act 1987 in relation to defective products.

  • Liability is not absolute, as defences are available. But ...