Seminar 1 – Introduction to the Aims and Functions of Tort Law
The purpose of this first seminar is to help you come to terms with some of the aims, objectives, and criticisms of tort law.
To achieve this, we will consider what it means to commit a ‘wrong’ for the purposes of tort liability and we will discuss
various lenses through which we can see tort operating (ie. to achieve corrective justice between the parties or to achieve
more pragmatic ends, such as compensation and deterrence). In this seminar, we will also consider some feminist critical
theory. Although we will only have time to scratch the surface of this theoretical material, the arguments contained within
the literature apply throughout the entirety of the course.
Required Reading:
Textbooks
Horsey and Rackley, Tort Law – Chapter 1
Case Law
Nettleship v Weston [1971] 3 WLR 370
Roberts v Ramsbottom [1980] 1 WLR 823
Mansfield v Weetabix [1998] 1 WLR 1263
McFarlane v Tayside Health Board [2000] 2 AC 59
Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309
Articles
Goldberg, ‘Ten Half-Truths about Tort Law,’ (2007) 42 Val.U.L.Rev 1221 (summer reading)
Weinrib, ‘Corrective Justice in a Nutshell,’ (2002) 52 U.Toronto LJ 349 (summer reading)
Conaghan, ‘Tort Law and Feminist Critique,’ (2003) 56 Current Legal Problems 175 (stop reading at 197)
Morgan, ‘Tort, Insurance and Incoherence,’ (2004) 67(3) MLR 384
Questions for Discussion
1. Are the decisions in Nettleship v Weston, Roberts v Ramsbottom, and Mansfield v Weetabix based on liability for fault?
(IE should they be let off for their actions?)
→ were they aware that their actions had the potential to become negligent?
Good to have a subjective standard as there are many little variations to bring about as a way to get out of it but
having different standard of carefulness because learners should not be expected to be as competent as a man
who has driven for 50 years but problem is that how do you go about imposing this?
When it comes to negligent driving courts are easy to impose liability. If you are not safe to be driving it,
you should not be on the roads. It is still the objective standard that stands.
- Nettleship (not based on liability for fraud but for negligence with driving – she was not morally blameworthy
emphasising that there was no fraud as this would be a conscious decision) HOWEVER if it was a pedestrian
not a tree the attitude would be different. Having sympathy is fine as we understand what happened but legal
fault is different.
- Roberts (not based on liability for fraud as he was not aware that he was unfit to drive as stated by lower court
decision, but he did not meet the threshold of being a reasonable driver). The court took same strict approach
as Nettleship and said that unless he was in a state of ‘absolutism’ he should not be let off and it was found
that he wasn’t. mix of criminal and tort!! (legal connections project).
- Mansfield (based on liability for fraud as his actions fell below the standard of care required which he should
have recognised as he had previously hit someone in his car that day). Court expressly disapproved with
1
, Ramsbottom that only automatism should let you off and that there were more reasons why you should be let
off liability. At first he was held liable then CA modified harshness of precedent from Roberts although they
still follow main test (in some rare circumstances they may analyse the facts more etc) some distributive
justices went in
2. What is tort law for?
→ regulates conduct and serves purpose of having corrective justice.
• Backward-looking role – Corrective Justice (UK system). addresses the harm of the wrong (fault and
causation)
1) Corrective justice – assigning blame and holding someone accountable. This provides closure for the victims.
(foundation of UK tort law). Also analyses relationship and circumstances between D and C so does not
compensate everyone.
2) Criminal law does not provide any compensation thus tort law aims to compensate for damage you have
suffered and put you back into same position you would have been in if you had not suffered the damage.
Punditry damage offers you a larger sum that what you suffered (rare as do not want system to appear as a
way to get money but occurs when the action is so appalling) Vindictive damage offers you a small sum where
action done is not too appalling and damage isn’t too bad but so a clear message is sent out to general public.
This is not always enough as some losses can never be fully compensated (loss of limb, family member etc).
Also, tort law does not compensate you for all sorts of harm (closed list, such as if you suffer pure economic
loss without physical damage to property etc, if you suffer psychological injury you’re less likely to get money
than if you suffer physical injury). Can only get compensation if you know exactly who caused the damage.
Even if you can find out who it was that caused harm you won’t get compensation unless they are in a
position to pay you compensation.
• Forward-looking role – Distributive Justice (Do not have in UK. Do have in New Zealand). looks to the
future (compensation and deterrent)
1) Compensation culture. The UK system encourages contrasts and encourages people to act carefully and not
cause injury to others.
2) Lack of responsibility. You are not getting closure (people paid into pot are not responsible for paying out so
people getting away with it if they do not pay punctually)
3) System cannot compensate fully as it all comes from one pot.
4) Puts burden on society to fund it. In NZ it is a separate system, not tax system, that people pay into so do
other services suffer?
In UK reality it is not so clear cut corrective justice and occasionally the judges look towards distributive justice
(sometimes people are held liable as it is recognised that the insurance is paying out instead of the individual which is
classified as distributive justice). This does not. Focus on the victim and what they suffered and look at what authorities
want to spend the money on. English judges do not like to recognise this as distributive justices but they say ‘for POLICY
reasons we should not hold the NHS/police liable because….’ So courts refuse to give compensation where it is clearly
duly required. Judges will use a forward looking approach if they think they are going to send the wrong message to society
(eg – not holding someone liable for negligence even though it is clear that they are liable. MacFarlanes case wanted
compensation for pain and suffering of mother and for cost of raising child and court ruled that they would only
compensate for pain and suffering because they did not society to think that the birth of a child should be a damage, thus
upholding the sanctity of life. This is a forward looking role and they use ‘floodgates policy’ that there would be so many
claims coming forward to the NHS in the future). However, this gave rise to criticism by feminists and general people
because who are they to tell a woman what to do? If it was not the NHS, their decision was wrong but because it was they
did not want to impose liability on doctors etc (before 1998 no claim against doctors had succeeded). Recently, the courts
are more keen to protect patient’s rights. AND it was said that ‘normal, healthy child’ was classified as not being a harm
but would a different approach be made if it was a disabled child (when this occurs the extra cost of compensating a
disabled child is compensated for – does this say that value of life of a disabled child is less?). In Rees where mother was
2
, disabled and there was failed contraception they gave her £15,000 (greater than MacFarlanes) but did not know how to
justify this so said they would justify her for her loss of autonomy as she had never wanted children.
→ with failed contraception cases the courts seem to make it up as they go along and sometimes come up with some bold
ideas that are often criticised by society when giving distributive justice reasons.
3. To what extent to you agree with the decisions in McFarlane v Tayside Health Board and Rees v Darlington Memorial
Hospital NHS Trust? In answering this question, pay close attention to the role that principle and policy played in
these decisions. In your opinion, did the courts strike the right balance between principle and policy? If yes, why?
If not, how would you have decided the cases and why?
- Principle of correlativity – disagree with decision in McFarlane as the ‘injustice’ being discussed is wrong
(falling pregnant with a baby is not an injustice) - Lord Slynn ‘Unwanted pregnancy was not a harm or injury
in the ‘ordinary sense of the words’
- Question is whether pregnancy fits definition in s38 as personal injury or is it a more harmless biological
function that cannot constitute damage/harm (Priaulx, the harm paradox)
4. The fact that corporations and public bodies now hold liability insurance means that in the vast majority of tort
cases, over-arching theories relating to corrective justice and individual responsibility are meaningless.
Do you agree?
- Principle of tort is that claims are brought about my individuals so the core principle of individual
responsibility should remain
- Theory of corrective justice should remain as it is the function of tort law to make sure that wrongs done are
put right and that people are deterred from making mistakes in the future.
Seminar 2 – (Negligence Principles, Omissions, 3rd Party)
The purpose of this seminar is to introduce you to the first elements of a claim arising in negligence: actionable damage and duty of care.
If you recall from our first lectures, Tort cannot accommodate all forms of harm suffered by an individual and so only some are
recognized by the courts as being ‘actionable’. Turning to the duty of care element, there have been a number of recently-decided cases
on the duty requirement, which speak directly to foundational principles. It is absolutely imperative that you read these cases in detail.
Like the requirement for actionable damage, the claimant must also establish that the defendant owed her, him, they a specific duty of
care. If the claimant is unable to establish damage or that a duty of care was owed, the court will strike the claim out and will not hear
issues relating to breach and causation.
As we work through the duty of care requirements, you’ll note that we break it down into different steps/routes. This process is
articulated in the reasoning of Darnley and Robinson. Very simply put, if the relationship between the claimant and defendant is novel (ie.
not contemplated by the courts before), you apply the test laid out in Caparo (however, note the difficulties with this as stated in the
decision of Robinson). If the relationship falls into a category considered by the court, it is with the corresponding precedent that courts
should begin.
Required Reading:
Textbook
Horsey and Rackley, Tort Law – 2 (background only – skim as needed), 3 &4
3
The purpose of this first seminar is to help you come to terms with some of the aims, objectives, and criticisms of tort law.
To achieve this, we will consider what it means to commit a ‘wrong’ for the purposes of tort liability and we will discuss
various lenses through which we can see tort operating (ie. to achieve corrective justice between the parties or to achieve
more pragmatic ends, such as compensation and deterrence). In this seminar, we will also consider some feminist critical
theory. Although we will only have time to scratch the surface of this theoretical material, the arguments contained within
the literature apply throughout the entirety of the course.
Required Reading:
Textbooks
Horsey and Rackley, Tort Law – Chapter 1
Case Law
Nettleship v Weston [1971] 3 WLR 370
Roberts v Ramsbottom [1980] 1 WLR 823
Mansfield v Weetabix [1998] 1 WLR 1263
McFarlane v Tayside Health Board [2000] 2 AC 59
Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309
Articles
Goldberg, ‘Ten Half-Truths about Tort Law,’ (2007) 42 Val.U.L.Rev 1221 (summer reading)
Weinrib, ‘Corrective Justice in a Nutshell,’ (2002) 52 U.Toronto LJ 349 (summer reading)
Conaghan, ‘Tort Law and Feminist Critique,’ (2003) 56 Current Legal Problems 175 (stop reading at 197)
Morgan, ‘Tort, Insurance and Incoherence,’ (2004) 67(3) MLR 384
Questions for Discussion
1. Are the decisions in Nettleship v Weston, Roberts v Ramsbottom, and Mansfield v Weetabix based on liability for fault?
(IE should they be let off for their actions?)
→ were they aware that their actions had the potential to become negligent?
Good to have a subjective standard as there are many little variations to bring about as a way to get out of it but
having different standard of carefulness because learners should not be expected to be as competent as a man
who has driven for 50 years but problem is that how do you go about imposing this?
When it comes to negligent driving courts are easy to impose liability. If you are not safe to be driving it,
you should not be on the roads. It is still the objective standard that stands.
- Nettleship (not based on liability for fraud but for negligence with driving – she was not morally blameworthy
emphasising that there was no fraud as this would be a conscious decision) HOWEVER if it was a pedestrian
not a tree the attitude would be different. Having sympathy is fine as we understand what happened but legal
fault is different.
- Roberts (not based on liability for fraud as he was not aware that he was unfit to drive as stated by lower court
decision, but he did not meet the threshold of being a reasonable driver). The court took same strict approach
as Nettleship and said that unless he was in a state of ‘absolutism’ he should not be let off and it was found
that he wasn’t. mix of criminal and tort!! (legal connections project).
- Mansfield (based on liability for fraud as his actions fell below the standard of care required which he should
have recognised as he had previously hit someone in his car that day). Court expressly disapproved with
1
, Ramsbottom that only automatism should let you off and that there were more reasons why you should be let
off liability. At first he was held liable then CA modified harshness of precedent from Roberts although they
still follow main test (in some rare circumstances they may analyse the facts more etc) some distributive
justices went in
2. What is tort law for?
→ regulates conduct and serves purpose of having corrective justice.
• Backward-looking role – Corrective Justice (UK system). addresses the harm of the wrong (fault and
causation)
1) Corrective justice – assigning blame and holding someone accountable. This provides closure for the victims.
(foundation of UK tort law). Also analyses relationship and circumstances between D and C so does not
compensate everyone.
2) Criminal law does not provide any compensation thus tort law aims to compensate for damage you have
suffered and put you back into same position you would have been in if you had not suffered the damage.
Punditry damage offers you a larger sum that what you suffered (rare as do not want system to appear as a
way to get money but occurs when the action is so appalling) Vindictive damage offers you a small sum where
action done is not too appalling and damage isn’t too bad but so a clear message is sent out to general public.
This is not always enough as some losses can never be fully compensated (loss of limb, family member etc).
Also, tort law does not compensate you for all sorts of harm (closed list, such as if you suffer pure economic
loss without physical damage to property etc, if you suffer psychological injury you’re less likely to get money
than if you suffer physical injury). Can only get compensation if you know exactly who caused the damage.
Even if you can find out who it was that caused harm you won’t get compensation unless they are in a
position to pay you compensation.
• Forward-looking role – Distributive Justice (Do not have in UK. Do have in New Zealand). looks to the
future (compensation and deterrent)
1) Compensation culture. The UK system encourages contrasts and encourages people to act carefully and not
cause injury to others.
2) Lack of responsibility. You are not getting closure (people paid into pot are not responsible for paying out so
people getting away with it if they do not pay punctually)
3) System cannot compensate fully as it all comes from one pot.
4) Puts burden on society to fund it. In NZ it is a separate system, not tax system, that people pay into so do
other services suffer?
In UK reality it is not so clear cut corrective justice and occasionally the judges look towards distributive justice
(sometimes people are held liable as it is recognised that the insurance is paying out instead of the individual which is
classified as distributive justice). This does not. Focus on the victim and what they suffered and look at what authorities
want to spend the money on. English judges do not like to recognise this as distributive justices but they say ‘for POLICY
reasons we should not hold the NHS/police liable because….’ So courts refuse to give compensation where it is clearly
duly required. Judges will use a forward looking approach if they think they are going to send the wrong message to society
(eg – not holding someone liable for negligence even though it is clear that they are liable. MacFarlanes case wanted
compensation for pain and suffering of mother and for cost of raising child and court ruled that they would only
compensate for pain and suffering because they did not society to think that the birth of a child should be a damage, thus
upholding the sanctity of life. This is a forward looking role and they use ‘floodgates policy’ that there would be so many
claims coming forward to the NHS in the future). However, this gave rise to criticism by feminists and general people
because who are they to tell a woman what to do? If it was not the NHS, their decision was wrong but because it was they
did not want to impose liability on doctors etc (before 1998 no claim against doctors had succeeded). Recently, the courts
are more keen to protect patient’s rights. AND it was said that ‘normal, healthy child’ was classified as not being a harm
but would a different approach be made if it was a disabled child (when this occurs the extra cost of compensating a
disabled child is compensated for – does this say that value of life of a disabled child is less?). In Rees where mother was
2
, disabled and there was failed contraception they gave her £15,000 (greater than MacFarlanes) but did not know how to
justify this so said they would justify her for her loss of autonomy as she had never wanted children.
→ with failed contraception cases the courts seem to make it up as they go along and sometimes come up with some bold
ideas that are often criticised by society when giving distributive justice reasons.
3. To what extent to you agree with the decisions in McFarlane v Tayside Health Board and Rees v Darlington Memorial
Hospital NHS Trust? In answering this question, pay close attention to the role that principle and policy played in
these decisions. In your opinion, did the courts strike the right balance between principle and policy? If yes, why?
If not, how would you have decided the cases and why?
- Principle of correlativity – disagree with decision in McFarlane as the ‘injustice’ being discussed is wrong
(falling pregnant with a baby is not an injustice) - Lord Slynn ‘Unwanted pregnancy was not a harm or injury
in the ‘ordinary sense of the words’
- Question is whether pregnancy fits definition in s38 as personal injury or is it a more harmless biological
function that cannot constitute damage/harm (Priaulx, the harm paradox)
4. The fact that corporations and public bodies now hold liability insurance means that in the vast majority of tort
cases, over-arching theories relating to corrective justice and individual responsibility are meaningless.
Do you agree?
- Principle of tort is that claims are brought about my individuals so the core principle of individual
responsibility should remain
- Theory of corrective justice should remain as it is the function of tort law to make sure that wrongs done are
put right and that people are deterred from making mistakes in the future.
Seminar 2 – (Negligence Principles, Omissions, 3rd Party)
The purpose of this seminar is to introduce you to the first elements of a claim arising in negligence: actionable damage and duty of care.
If you recall from our first lectures, Tort cannot accommodate all forms of harm suffered by an individual and so only some are
recognized by the courts as being ‘actionable’. Turning to the duty of care element, there have been a number of recently-decided cases
on the duty requirement, which speak directly to foundational principles. It is absolutely imperative that you read these cases in detail.
Like the requirement for actionable damage, the claimant must also establish that the defendant owed her, him, they a specific duty of
care. If the claimant is unable to establish damage or that a duty of care was owed, the court will strike the claim out and will not hear
issues relating to breach and causation.
As we work through the duty of care requirements, you’ll note that we break it down into different steps/routes. This process is
articulated in the reasoning of Darnley and Robinson. Very simply put, if the relationship between the claimant and defendant is novel (ie.
not contemplated by the courts before), you apply the test laid out in Caparo (however, note the difficulties with this as stated in the
decision of Robinson). If the relationship falls into a category considered by the court, it is with the corresponding precedent that courts
should begin.
Required Reading:
Textbook
Horsey and Rackley, Tort Law – 2 (background only – skim as needed), 3 &4
3
