Chapter 1 – Introduction
What is tort law?
- A ‘tort’ is a civil wrong for which the law provides a remedy.
o The origin of the word ‘tort’ is from the Latin tortus (meaning crooked or
twisted), although the more usual translation is that from modern French
where it corresponds with ‘wrong’
o Thus, at its simplest, the law of tort is the law of non-criminal wrongs.
- What interests does tort law protect?
o Where someone has suffered an unwanted harm
Can involve physical injury, psychiatric injury or even death.
Harm can also include damage to property or financial loss
o Rights to bodily freedom and autonomy
Embraced physical and psychological integrity
- Some torts exist to protect just a single interest (e.g. defamation protects a person's
reputation, nuisance protects an individual’s interest in enjoying their land), but the
tort of negligence offers protection to all our legally recognised rights and interests.
The disparate aims of tort law
- Tort law looks both backwards at what happened (the wrong) and addresses the
harm done, while also looking to the future at ways of regulating behaviour and
developing responses to the risk of harm.
o It seeks to protect an individual's interests both prospectively and
retrospectively.
- The case of Woodroffe-Headley v Cuthbertson [1997] QBD is indicative and
revealing about the diverse purposes and functions of tort law.
o The case involved a negligence claim following a climbing accident on the
North Face of the Tour Ronde.
Hedley, who was an experienced climber, hired Cuthbertson, an
experience alpine climber, to guide him to the summit of the Tour
Ronde, a steep ice climb of about 350 meters.
At the time of the accident, Cuthbertson was leading.
Concerned about the head of the sun on the snow and the
danger of rock fall, he decided to protect Hedley on a single ice
screw belay in order to save time.
Cuthbertson had no recollection of the accident, however, another
climber on the mountain described how a large sheet of ice broke
away from under his feet, dragging him down with it.
The shock of the fall wrenched out the single ice screw and
Hedley was also dragged down. The rope caught on a rocky
outcrop and Hedley was killed instantly.
, Cuthbertson survived with a fractured knee.
o The question to the court was whether Cuthbertson had negligently caused
Hedley’s death.
The evidence that two ice screws and a running belay had been used,
Hedley would not have died.
Cuthbertson argued that given the pressures of time it was
reasonable to use a single screw.
Dyson J disagreed.
Cuthbertson, in deciding to dispense with a second screw and not
using a running belay, had fallen below the standard of care expected
of a reasonably competent and careful alpine guide.
The claimant (Hedley’s young son) was awarded £150,000 in
damaged.
- Corrective Justice:
o One argument from this case is that tort law should do corrective justice.
In short, the accident was Cuthbertson’s fault; he was to blame for
causing the accident and therefore he should pay.
Corrective justice is built on two key elements – fault and causation.
A defendant is liable to make good a claimant’s losses because
they (a) factually caused the claimant to suffer those losses
and (b) were to blame in so acting.
Corrective justice seems to provide a fairly good account of the typical
tort claim, and for the most part, defendant is liable in the aw of tort
only where they caused the claimants loss and they were at fault for
doing so.
However, sometimes the application of corrective justice may not be
so clear.
For example, there may not be a clear or single answer for
who is to blame for the claimant’s injuries.
- Compensation:
o Another argument from this case is that tort law should provide
compensation
In the majority of tort cases, corrective justice is achieved by requiring
the defendant to compensate the claimant for the losses they have
caused them.
This may make it appear that corrective justice and
compensation are effectively synonymous, but that is not
quite right.
While corrective justice often requires the payment of compensation,
is does so only where the defendant is morally and legally responsible
for the claimant’s loss.
This seems to impose significant limits on the role of tort law
as a means for compensating losses. If tort law is simply about
‘doing’ corrective justice, then it can do nothing to remedy
What is tort law?
- A ‘tort’ is a civil wrong for which the law provides a remedy.
o The origin of the word ‘tort’ is from the Latin tortus (meaning crooked or
twisted), although the more usual translation is that from modern French
where it corresponds with ‘wrong’
o Thus, at its simplest, the law of tort is the law of non-criminal wrongs.
- What interests does tort law protect?
o Where someone has suffered an unwanted harm
Can involve physical injury, psychiatric injury or even death.
Harm can also include damage to property or financial loss
o Rights to bodily freedom and autonomy
Embraced physical and psychological integrity
- Some torts exist to protect just a single interest (e.g. defamation protects a person's
reputation, nuisance protects an individual’s interest in enjoying their land), but the
tort of negligence offers protection to all our legally recognised rights and interests.
The disparate aims of tort law
- Tort law looks both backwards at what happened (the wrong) and addresses the
harm done, while also looking to the future at ways of regulating behaviour and
developing responses to the risk of harm.
o It seeks to protect an individual's interests both prospectively and
retrospectively.
- The case of Woodroffe-Headley v Cuthbertson [1997] QBD is indicative and
revealing about the diverse purposes and functions of tort law.
o The case involved a negligence claim following a climbing accident on the
North Face of the Tour Ronde.
Hedley, who was an experienced climber, hired Cuthbertson, an
experience alpine climber, to guide him to the summit of the Tour
Ronde, a steep ice climb of about 350 meters.
At the time of the accident, Cuthbertson was leading.
Concerned about the head of the sun on the snow and the
danger of rock fall, he decided to protect Hedley on a single ice
screw belay in order to save time.
Cuthbertson had no recollection of the accident, however, another
climber on the mountain described how a large sheet of ice broke
away from under his feet, dragging him down with it.
The shock of the fall wrenched out the single ice screw and
Hedley was also dragged down. The rope caught on a rocky
outcrop and Hedley was killed instantly.
, Cuthbertson survived with a fractured knee.
o The question to the court was whether Cuthbertson had negligently caused
Hedley’s death.
The evidence that two ice screws and a running belay had been used,
Hedley would not have died.
Cuthbertson argued that given the pressures of time it was
reasonable to use a single screw.
Dyson J disagreed.
Cuthbertson, in deciding to dispense with a second screw and not
using a running belay, had fallen below the standard of care expected
of a reasonably competent and careful alpine guide.
The claimant (Hedley’s young son) was awarded £150,000 in
damaged.
- Corrective Justice:
o One argument from this case is that tort law should do corrective justice.
In short, the accident was Cuthbertson’s fault; he was to blame for
causing the accident and therefore he should pay.
Corrective justice is built on two key elements – fault and causation.
A defendant is liable to make good a claimant’s losses because
they (a) factually caused the claimant to suffer those losses
and (b) were to blame in so acting.
Corrective justice seems to provide a fairly good account of the typical
tort claim, and for the most part, defendant is liable in the aw of tort
only where they caused the claimants loss and they were at fault for
doing so.
However, sometimes the application of corrective justice may not be
so clear.
For example, there may not be a clear or single answer for
who is to blame for the claimant’s injuries.
- Compensation:
o Another argument from this case is that tort law should provide
compensation
In the majority of tort cases, corrective justice is achieved by requiring
the defendant to compensate the claimant for the losses they have
caused them.
This may make it appear that corrective justice and
compensation are effectively synonymous, but that is not
quite right.
While corrective justice often requires the payment of compensation,
is does so only where the defendant is morally and legally responsible
for the claimant’s loss.
This seems to impose significant limits on the role of tort law
as a means for compensating losses. If tort law is simply about
‘doing’ corrective justice, then it can do nothing to remedy
