#14685 - Principles Of Tort Law - GDL Tort Law

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The principle torts are:

• Negligence

• Nuisance

• Defamation

• Assault

• Battery

• False imprisonment

Definition of tort

• C Harlow: “The word ‘tort’ … is something of a puzzle ... In fact it is the French word for ‘wrong’ and its use points us back through the centuries to the Norman French language, which was once the working language of the ‘King’s courts’. A tort is simply a ‘wrong’ and tort law is the law of ‘wrongdoing’ or perhaps of ‘wrongs’.”

• M Jones: “The law of tort is primarily concerned with providing a remedy to persons who have been harmed by the conduct of others.”

Aims of tort

• M Jones: to provide a remedy to those harmed by the actions of others

• S Hedley: to provide a vehicle for those wronged to instigate an action (as opposed to criminal proceedings, which are instigated by an official prosecutor)

The jurisprudential basis of tort:

• Loss distribution

• Compensation

• Justice

• Appeasement

• Punitive

• Lord Denning in Dutton v Bognor Regis the court really hides “the best policy for the law to adopt?” hidden behind questions of duty, proximity & forseeability

Glanville Williams ‘The Aims of Tort’

• Appeasement

  • Tort & crime’s roots in early English law shared the short-sighted aim to appease the current squabble rather than a far-sighted attempt to prevent future crime/tort. The victim is appeased by compensation because 1. He is comforted by the money 2. Pleased that the defendant has been made to pay

  • Modern law sees appeasement as a more secondary concern – the law should not be a safety-valve, used to let off steam by militant claimants.

  • Yet it is fair to presume that unresolved torts would be an affliction in society as a whole, so its “pacificatory aim” is still potentially important

  • Defamation: appeasement basis for action implies that the only thing wrong about defamation is that it offends the victim, ignoring the obvious social damage. As at the time of writing, Williams contrasted the tort of libel as (in serious libels) which applies even where the publication is only to the victim himself – this evidences that an action would be concerned with appeasement of the individual – however with defamation (even trivial), a claim can only be actioned if there has been publication to a third party i.e. there needs to be an effect beyond the individual.

• Justice

  • “the expression of a moral principle” – one who causes damage to another should pay compensation:

    • Ethical retribution i.e. “compensation is an evil for the offender”

    • Ethical compensation i.e. “payment of compensation is a benefit to the victim of the wrong”

  • Act of 1934 – PR can recover damages for a tort done to deceased before death even when the estate is left to charity. Example of ethical retribution.

  • Debate about the validity of these two theories of justice: those who subscribe to ethical compensation need not subscribe to ethical retribution, and may well take the view that, should the victim be recuperated, even by the State or an insurance company, no further action should be taken. Williams notes the various philosophical groups who advocate against punitive justice – the Utilitarians, psychologists, Christians etc. Williams offers support for the theory of ethical compensation as he suggests though moral people may not volunteer to punish themselves, they do adopt a pragmatic approach to the reparation of wrongs: “replacement is a point of honour with them” cf. de Maupassant’ story of the necklace

  • Early Court of Chancery: conscience of the wrongdoer is purged by restitution

  • Questions the validity of being compelled to perform a just act – Kant states that there is no moral value in an individual’s good conduct if it has been compelled by another

  • However, Williams agrees that compulsion to do justice has educational value at least

  • Aristotle’s notion of equilibrium supports the idea of compensation

  • Money, as a status symbol, is redistributed in by actions in tort and therefore can be seen as “depressing anti-social elements”

  • However, Williams notes that tort does not “perfectly reflect morality” in that good and bad intent are not always relevant to proceedings. “Even the fact that the defendant took reasonable care to avoid damage is not necessarily a defence”.

• Deterrence

  • Tort as ‘judicial parable’

  • “Both criminal punishment and tort damages were sanctions and therefore evil”, only different in degree - see Bentham, Austin & Salmond for more on this view. Lundstedt goes further to suggest that...