I. Introduction to the Law of Tort
Introduction
Who can sue whom, in what tort, for what damage and are there any defences?
Intrinsic Characteristics of Tort
According to Cane, two of the intrinsic characters of tort are:
‘to provide guidance to individuals about how they may and ought to behave in their
interactions with others [and] to provide protection for certain interests of individuals
Nature of Tortious Liability
Tort identifies duties of non-injuriousness owed by some (or all) to others. These duties are
of a special sort, in that they are imposed by law rather than generated by an agreement.
And they are understood to be duties of right conduct, in the sense that breaches of them
generally stand to earn the breaching party criticism for acting without sufficient regard
for the interests of others. Because the duties in question are relational, those who are not
beneficiaries of the duty breached have no standing to complain of the breach. Moreover,
because tort duties are relational duties of non-injury, their breach characteristically gives
rise… [to] a private right of action, exercisable by the victim or her representative.
Because tort duties are duties of non-injuriousness, persons who have not suffered the right
sort of adverse effect because of a breach have no grounds to sue for the breach. And so
on.
- Goldberg ‘10 Half-Truths’
Those who are not beneficiaries of the breach can not bring a claim…
‘Tort’ derived from Latin tortum → ‘wrong’ or ‘injustice’
‘A tort is a species of wrong. A wrong is a breach of a duty owed to someone else. A
breach of a duty owed to someone else is an infringement of a right they have against the
tortfeasor.’
Stevens, Torts and Rights
Intentional vs non-intentional conduct
Intentional wrongs or trespassory torts (assault, battery, false imprisonment)??
Negligence?
Nuisance?
Actionable damage vs Actionable per se → some torts require proof that the C has
suffered a recognised harm; other torts do not
Interests protected → different torts protect different interests such as, bodily integrity,
proprietary interests, etc.
Remedies → damages (compensatory, restitutionary, etc.), injunctions
A Species of Wrong – all car incidents though..
Nettleship v Weston [1971] 3 WLR 370
- D wanted to learn how to drive
- C agrees, but asks if he is insured. He said yes
- In the process of making the turn, she mounted the curb and hit the lamppost
- Mr. Nettleship suffered an injury to his knee
- Was Weston liable for this? Did she breach a duty of care?
, - On whom should the risk fall? Morally, the learner-drive is not a fault but.. [Lord
Denning]
- Legally, she was at fault…
- ‘I have treated Mrs. W as the driver who was herself in control of the car…she is plainly
liable…for the injury done to Mr N. She owed a duty of care to each. The standard of
care is…measured objectively by the care to be expected of an experienced skilled and
careful driver.’ [Lord Denning]
Roberts v Ramsbottom [1980] 1 WLR 823
- Mother and daughter visiting a laundry mat
- Mr. Ramsbottom comes in full speed and hits them
- The car is destroyed; mother and daughter sustain serious injuries
- Mr. Ramsbottom is also taken to the hospital and is interviewed
- Mr. R had had a series of accidents before this big one
- Mr. R, ‘I was feeling a bit off’
- It turns that Mr. R had been experiencing minor strokes the entire morning
-
Mansfield v Weetabix [1998] 1 WLR 1263
- C were two shop owners; it was on the bend of a curve
- The Weetabix delivery driver was making a delivery
- As he was supposed to make a turn, he didn’t and drove straight into the store
- The lorry driver was suffering from a type of hypoglycaemia
- The way the disease works, the lorry driver would not have noticed a difference in his
health
- ‘The standard that [the driver] was obliged to show was that which is expected of a
reasonably competent driver. [The driver] did not know and could not reasonably have
known of his infirmity which was the cause of the accident. Therefore he was not at
fault. His actions did not fall below the standard of care required.’ [Aldous LJ]
Functions and Aims of Tort Law
Aims of Tort Law
Corrective Justice
Liability consists in a legal relationship between two parties, … In holding the defendant liable
to the [claimant], the court is making not two separate judgments (one that awards something
to the [claimant] and the other that coincidentally takes the same away from the defendant)
but a single judgment that embraces both parties in their inter-relationship.”
Weinrib ‘Corrective Justice in a Nutshell’
You can’t look at things from only the view of the claimant or the defendant; it is the
interpersonal relationship between the two
The defendant cannot be thought of as liable without reference to a [claimant] in whose favour
such liability runs. Similarly, the plaintiff's entitlement exists only in and through the
defendant's correlative obligation.
Weinrib ‘Corrective Justice in a Nutshell’
,Ingredients
Principle of correlativity
Both parties must be legal persons
Claimant and defendant as sufferer and doer of the same injustice
Claimant (sufferer)
A recognised protected right (or interest)
Her right, was violated
Defendant
A duty owed to the claimant herself and breached
The ‘correlative obligation’
Generally therefore: fault and reasonable foreseeability
If a claimant has been violated, but the defendant has no duty of care.. then cast
McFarlane v Tayside Health Board [2002] 2 AC 59
- C was a woman. They were a married couple
- They went to THB; they had four children. They didn’t want anymore
- They wanted a vasectomy
- It was done; this was not done negligently
- After the check-up, they were good to go. This was done negligently
- After a year, the wife becomes pregnant again …
It is possible to view the case simply from the perspective of corrective justice. It requires
somebody who has harmed another without justification to indemnify the other. On this
approach the parents' claim for the cost of bringing up Catherine must succeed. But one may
also approach the case from the vantage point of distributive justice. It requires a focus on the
just distribution of burdens and losses among members of society.
Lord Steyn
Corrective Justice – one to one
Strictly based on the relationship between the two people in the case
Distributive Justice – one to many
This looks at society and community welfare operations
The proper role of community welfare considerations in deciding cases and shaping private
law rules lies at the heart of questions about the nature of [tort] law.
Robertson ‘Constraints on Policy-Based Reasoning’
Distributive Justice
‘[is] premised on a scarcity of resources or funds...[which] aim to provide justifications for
apportioning and sharing the common pie,’ or some proportionately- based criteria to assess
merit or need. Simply put, distributive justice aims to ensure that as between the parties ‘that
neither equal persons have unequal things, nor unequal persons things equal.’
Tan, ‘Deterrence in Private Law’
and
Wright, ‘Right, Justice, and Tort Law’
It is basically saying we have to be more aware of the decisions that are made as they affect
the whole society and not just those two parties and their scenarios
, Some distributive justice considerations:
‘Floodgates’ arguments – if a particular judgement is allowed to proceed, are
there going to be a floodgate of other cases of the nature? And then what
happens then?
Conflicting Interests
Public Policy and the Sanctity of Life
Illegal conduct on the part of the claimant
Existing law
Availability of alternative remedies
Distributive justice are usually seen as ‘fair, just and reasonable’
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
- C (victim’s wife) bring an action against the D that her husband had been exposed to
asbestos (which causes a type of cancer)
- Employers owe a duty of care to their employees and C is saying that D did not do that
- It is difficult, even today, to pinpoint what exactly causes the cancer (one time dust or
over a period of time. Was it exactly their dust? Or when he was working somewhere
else)
…there is a strong policy argument in favour of compensating those who have suffered grave
harm, at the expense of their employers who owed them a duty to protect them against that
very harm and failed to do so…
Lord Bingham
CONTRAST with McFarlane
‘…it is morally offensive to regard a normal, healthy baby as more trouble and expense than
it is worth.’ Lord Millet
‘Instinctively, the traveller on the Underground would consider that the law of tort has no
business to provide legal remedies consequent upon the birth of a healthy child, which all of
us regard as a valuable and good thing.’ Lord Steyn
Is this what the couple said? No, but let’s not deny the facts…
This is about distributive justice here; public policy-based reasoning
We have to be careful how we apply distributive justice to cases (describes as an unruly horse)
‘The truth is that tort law is a mosaic in which the principles of corrective justice and
distributive justice are interwoven. And in situations of uncertainty and difficulty a choice
sometimes has to be made between the two approaches.’
Lord Steyn
McFarlane v Tayside Health Board
[2000] 2 AC 59
You can’t really have correct and distributive justice in separate vacuums. They are interwoven
Properly understood, distributive justice and corrective justice are separately necessary and
jointly compatible…corrective justice and distributive justice may not only co-exist in the same
body of law, but also apply simultaneously in the same situation.
Introduction
Who can sue whom, in what tort, for what damage and are there any defences?
Intrinsic Characteristics of Tort
According to Cane, two of the intrinsic characters of tort are:
‘to provide guidance to individuals about how they may and ought to behave in their
interactions with others [and] to provide protection for certain interests of individuals
Nature of Tortious Liability
Tort identifies duties of non-injuriousness owed by some (or all) to others. These duties are
of a special sort, in that they are imposed by law rather than generated by an agreement.
And they are understood to be duties of right conduct, in the sense that breaches of them
generally stand to earn the breaching party criticism for acting without sufficient regard
for the interests of others. Because the duties in question are relational, those who are not
beneficiaries of the duty breached have no standing to complain of the breach. Moreover,
because tort duties are relational duties of non-injury, their breach characteristically gives
rise… [to] a private right of action, exercisable by the victim or her representative.
Because tort duties are duties of non-injuriousness, persons who have not suffered the right
sort of adverse effect because of a breach have no grounds to sue for the breach. And so
on.
- Goldberg ‘10 Half-Truths’
Those who are not beneficiaries of the breach can not bring a claim…
‘Tort’ derived from Latin tortum → ‘wrong’ or ‘injustice’
‘A tort is a species of wrong. A wrong is a breach of a duty owed to someone else. A
breach of a duty owed to someone else is an infringement of a right they have against the
tortfeasor.’
Stevens, Torts and Rights
Intentional vs non-intentional conduct
Intentional wrongs or trespassory torts (assault, battery, false imprisonment)??
Negligence?
Nuisance?
Actionable damage vs Actionable per se → some torts require proof that the C has
suffered a recognised harm; other torts do not
Interests protected → different torts protect different interests such as, bodily integrity,
proprietary interests, etc.
Remedies → damages (compensatory, restitutionary, etc.), injunctions
A Species of Wrong – all car incidents though..
Nettleship v Weston [1971] 3 WLR 370
- D wanted to learn how to drive
- C agrees, but asks if he is insured. He said yes
- In the process of making the turn, she mounted the curb and hit the lamppost
- Mr. Nettleship suffered an injury to his knee
- Was Weston liable for this? Did she breach a duty of care?
, - On whom should the risk fall? Morally, the learner-drive is not a fault but.. [Lord
Denning]
- Legally, she was at fault…
- ‘I have treated Mrs. W as the driver who was herself in control of the car…she is plainly
liable…for the injury done to Mr N. She owed a duty of care to each. The standard of
care is…measured objectively by the care to be expected of an experienced skilled and
careful driver.’ [Lord Denning]
Roberts v Ramsbottom [1980] 1 WLR 823
- Mother and daughter visiting a laundry mat
- Mr. Ramsbottom comes in full speed and hits them
- The car is destroyed; mother and daughter sustain serious injuries
- Mr. Ramsbottom is also taken to the hospital and is interviewed
- Mr. R had had a series of accidents before this big one
- Mr. R, ‘I was feeling a bit off’
- It turns that Mr. R had been experiencing minor strokes the entire morning
-
Mansfield v Weetabix [1998] 1 WLR 1263
- C were two shop owners; it was on the bend of a curve
- The Weetabix delivery driver was making a delivery
- As he was supposed to make a turn, he didn’t and drove straight into the store
- The lorry driver was suffering from a type of hypoglycaemia
- The way the disease works, the lorry driver would not have noticed a difference in his
health
- ‘The standard that [the driver] was obliged to show was that which is expected of a
reasonably competent driver. [The driver] did not know and could not reasonably have
known of his infirmity which was the cause of the accident. Therefore he was not at
fault. His actions did not fall below the standard of care required.’ [Aldous LJ]
Functions and Aims of Tort Law
Aims of Tort Law
Corrective Justice
Liability consists in a legal relationship between two parties, … In holding the defendant liable
to the [claimant], the court is making not two separate judgments (one that awards something
to the [claimant] and the other that coincidentally takes the same away from the defendant)
but a single judgment that embraces both parties in their inter-relationship.”
Weinrib ‘Corrective Justice in a Nutshell’
You can’t look at things from only the view of the claimant or the defendant; it is the
interpersonal relationship between the two
The defendant cannot be thought of as liable without reference to a [claimant] in whose favour
such liability runs. Similarly, the plaintiff's entitlement exists only in and through the
defendant's correlative obligation.
Weinrib ‘Corrective Justice in a Nutshell’
,Ingredients
Principle of correlativity
Both parties must be legal persons
Claimant and defendant as sufferer and doer of the same injustice
Claimant (sufferer)
A recognised protected right (or interest)
Her right, was violated
Defendant
A duty owed to the claimant herself and breached
The ‘correlative obligation’
Generally therefore: fault and reasonable foreseeability
If a claimant has been violated, but the defendant has no duty of care.. then cast
McFarlane v Tayside Health Board [2002] 2 AC 59
- C was a woman. They were a married couple
- They went to THB; they had four children. They didn’t want anymore
- They wanted a vasectomy
- It was done; this was not done negligently
- After the check-up, they were good to go. This was done negligently
- After a year, the wife becomes pregnant again …
It is possible to view the case simply from the perspective of corrective justice. It requires
somebody who has harmed another without justification to indemnify the other. On this
approach the parents' claim for the cost of bringing up Catherine must succeed. But one may
also approach the case from the vantage point of distributive justice. It requires a focus on the
just distribution of burdens and losses among members of society.
Lord Steyn
Corrective Justice – one to one
Strictly based on the relationship between the two people in the case
Distributive Justice – one to many
This looks at society and community welfare operations
The proper role of community welfare considerations in deciding cases and shaping private
law rules lies at the heart of questions about the nature of [tort] law.
Robertson ‘Constraints on Policy-Based Reasoning’
Distributive Justice
‘[is] premised on a scarcity of resources or funds...[which] aim to provide justifications for
apportioning and sharing the common pie,’ or some proportionately- based criteria to assess
merit or need. Simply put, distributive justice aims to ensure that as between the parties ‘that
neither equal persons have unequal things, nor unequal persons things equal.’
Tan, ‘Deterrence in Private Law’
and
Wright, ‘Right, Justice, and Tort Law’
It is basically saying we have to be more aware of the decisions that are made as they affect
the whole society and not just those two parties and their scenarios
, Some distributive justice considerations:
‘Floodgates’ arguments – if a particular judgement is allowed to proceed, are
there going to be a floodgate of other cases of the nature? And then what
happens then?
Conflicting Interests
Public Policy and the Sanctity of Life
Illegal conduct on the part of the claimant
Existing law
Availability of alternative remedies
Distributive justice are usually seen as ‘fair, just and reasonable’
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
- C (victim’s wife) bring an action against the D that her husband had been exposed to
asbestos (which causes a type of cancer)
- Employers owe a duty of care to their employees and C is saying that D did not do that
- It is difficult, even today, to pinpoint what exactly causes the cancer (one time dust or
over a period of time. Was it exactly their dust? Or when he was working somewhere
else)
…there is a strong policy argument in favour of compensating those who have suffered grave
harm, at the expense of their employers who owed them a duty to protect them against that
very harm and failed to do so…
Lord Bingham
CONTRAST with McFarlane
‘…it is morally offensive to regard a normal, healthy baby as more trouble and expense than
it is worth.’ Lord Millet
‘Instinctively, the traveller on the Underground would consider that the law of tort has no
business to provide legal remedies consequent upon the birth of a healthy child, which all of
us regard as a valuable and good thing.’ Lord Steyn
Is this what the couple said? No, but let’s not deny the facts…
This is about distributive justice here; public policy-based reasoning
We have to be careful how we apply distributive justice to cases (describes as an unruly horse)
‘The truth is that tort law is a mosaic in which the principles of corrective justice and
distributive justice are interwoven. And in situations of uncertainty and difficulty a choice
sometimes has to be made between the two approaches.’
Lord Steyn
McFarlane v Tayside Health Board
[2000] 2 AC 59
You can’t really have correct and distributive justice in separate vacuums. They are interwoven
Properly understood, distributive justice and corrective justice are separately necessary and
jointly compatible…corrective justice and distributive justice may not only co-exist in the same
body of law, but also apply simultaneously in the same situation.
