Aims of Tort
Morgan, Weinrib: Compensating individual justice compensating individuals for harms
suffered that were caused by another individual’s wrong
o Requirements such as causation of harm show that it is about correcting wrongs
Weinrib: Considerations such as promoting economic efficiency should not play a role
o CA: But we cannot consider tort in a vacuum eg. tort plays a big role in
compensation for motor accidents.
We can only ignore instrumental considerations if we set up new systems to
account for such considerations eg. NZ’s no fault accident compensation
system
o CA: Even if tort is about corrective justice, we still have to ask (i) what constitutes a
wrong (ii) what is an appropriate remedy?
Eg. if a poor person causes financial harm to a millionaire, should he pay
money or just apologise?
We may have to consider wealth, character etc when thinking about a just
remedy suggests that corrective justice is not just about strict rules and
uniform remedies need to factor in other considerations
Distributive justice “loss distribution” (policy consideration seen in Fairchild, Spartan Steel)
o Tort is about collective responsibility to compensate individuals for harms suffered
eg. NZ’s no fault accident compensation system
o CA: Abel: Under the system, everyone pays in the same amount, but the rich get
more compensation when their expensive cars are damaged
o Distributive justice not should not be the aim of tort
Not the aim of tort as it requires fault
Inefficient: Expensive and only compensates a small proportion of victims
social security system would be more fair
Unequal: Successful claimants receive high awards while those relying on
social security receive much less
Deterrence
o Threat of tort liability promotes economic efficiency eg. a reduction in the accident
rate to the extent that is efficient
It is about corrective justice
Criticism of fault principle
Basis: Morally right that a person who injures another through fault should have to
compensate
CA: Once there is fault, all compensation is given to C
o Atiyah: Compensation bears no relation to the degree of fault & the means of D
o Atiyah: Harm-doer may be legally liable without being morally culpable and vice versa
o Eg. Insurance is used as a loss-distribution mechanism to shift liability to parties not
at fault
o If the law reflected morality, it would not adopt an objective definition of fault
o But may not be bad main purpose of the law could be to provide compensation
rather than to evaluate moral fault
o If so, criteria of compensation should be whether C has been injured, regardless of
how. Problem of tort system is that it fails to compensate many others who have
suffered injuries in circumstances that do not fall within the tort system
,Alternatives to tort law
“No-fault” compensation alongside or in place of the law of tort (eg. New Zealand)
Atiyah, Holmes: Abolition of tortious liability for personal injuries encourage an increase in
self-reliance by getting first-party insurance
Defamation
It is to be noted that the 2013 Defamation Act is not designed to codify the law of
defamation. (Davis LJ, Lachaux). Discuss. (2019)
Intro
2013 Defamation Act was not intended to codify the law of defamation but rather
amend it (Davis LJ, Lachaux) address existing problems
Existing problems
o Blurred distinction between libel and slander
o Abolishment of common law defences of justification, fair comment and the
Reynolds defence in sections 2,3 and 4 of Act
Ultimately, both codification and amendment are merely mechanisms that Parliament
adopts to best balance between protecting Cs who suffer unjustified harms to
reputation and preserving freedom of speech in society
o Johnson: In the modern era, courts are ‘far more conscious’ of the value of
freedom of expression likely to result in an expansive interpretation of
defences
Parliament’s intention of amending law of defamation
Address outdated libel laws and shift the power away from the ‘powerful and wealthy
to stifle fair criticism’ (Nick Clegg) restore balance between protecting C who
suffer unjustified harms to their reputation & preserving freedom of speech in society
However, may also have been to codify the law to increase legal certainty (Orestis)
statute serves as overarching authority, but previous common law serves as
guidance on interpreting statute
o Certainty was crucial in English legal system 2008 study concluded that the
cost of libel proceedings in England was 140 times higher than an average
European state due to the complex law and lack of clarity in its
interpretation
Defamation Act amended the law regarding libel and slander its interpretation caused
confusion but now largely resolved
Common law: Libel reputational loss was presumed while special damage had to be
proved for slander (Thorley) exception of imputations of an indictable criminal
offence and professional incompetence
Act blurred this distinction s.1(1) requires serious harm to be proven regardless of
whether it is libel or slander
CA: Act may not have amended this requirement but merely codified it as common
law was already moving towards this new stance
o Thornton: Tugendhat J: Common law already required C to show a likelihood
that C would suffer adverse consequences in terms of ‘less favourable
, treatment at the hands of right-thinking others’ however not conclusive as
to whether common law was moving towards new stance as he did not
determine whether his conclusion on the seriousness threshold, combined with
Jameel’s ruling renders libel no longer actionable per se
o Ambiguity is highlighted by the CA in Lachaux who rejected the notion
that evidence of actual damage is needed to show that a defamatory statement
is likely to cause serious reputational harm insists that libel remains
actionable per se
o Confusion has been largely resolved by SC in Lachaux who rejected CA’s
approach
Lord Sumption: CA’s interpretation would not have altered the
existing common law contrary to parliament’s intention
Serious harm must be determined with reference to actual facts.
Whether serious harm is likely to occur is also a factual question based
on probability
CA: Parliament’s aim was to amend the law to require a ‘more demanding’ approach
relative to the existing common law did amend the law but still largely coherent
with common law
o Parliament had decided on the requirement of ‘serious harm’ only after
considering both ‘substantial harm’ and ‘serious and substantial harm’
o As Tugendhat J’s test in Thornton only required a ‘substantial harm’
Warby J in Lachaux inferred that Parliament intended to ‘raise the bar’ beyond
the Thornton position in the 2013 Act
o But Warby J does acknowledge that Parliament did not intend to radically alter
the common law position
Still possible to find that words are defamatory based on inference
If a public figure is accused in the media of a ‘grave imputation’
hard to require the public figure to call on witnesses to say whether
they thought worse of C after the publication. Court will objectively
assess the meaning and defamatory tendency of the words, per
common law
o Given that ‘likely to cause serious harm’ to C’s reputation is sufficient
Descheemaeker: C may be able to recover loss even though loss never
occurred & may never occur overly claimant-friendly (Mullis & Scott)
Defamation Act codified the common law defence of justification under the name of
defence of truth (s.2 of Act)
Common law: D has a defence if he can establish the ‘substantial truth’ of the ‘sting
of the charge’ (Edwards). Fact that D merely repeated the imputation is not a valid
defence (Stern)
s.2(1) Act likewise requires D to show that defamatory statement is ‘substantially
true’ Act has no change of substance to the previous law
Affirmed by the Explanatory Notes of the Act states that s.2(1) simply
‘incorporates’ the repetition rule
Morgan, Weinrib: Compensating individual justice compensating individuals for harms
suffered that were caused by another individual’s wrong
o Requirements such as causation of harm show that it is about correcting wrongs
Weinrib: Considerations such as promoting economic efficiency should not play a role
o CA: But we cannot consider tort in a vacuum eg. tort plays a big role in
compensation for motor accidents.
We can only ignore instrumental considerations if we set up new systems to
account for such considerations eg. NZ’s no fault accident compensation
system
o CA: Even if tort is about corrective justice, we still have to ask (i) what constitutes a
wrong (ii) what is an appropriate remedy?
Eg. if a poor person causes financial harm to a millionaire, should he pay
money or just apologise?
We may have to consider wealth, character etc when thinking about a just
remedy suggests that corrective justice is not just about strict rules and
uniform remedies need to factor in other considerations
Distributive justice “loss distribution” (policy consideration seen in Fairchild, Spartan Steel)
o Tort is about collective responsibility to compensate individuals for harms suffered
eg. NZ’s no fault accident compensation system
o CA: Abel: Under the system, everyone pays in the same amount, but the rich get
more compensation when their expensive cars are damaged
o Distributive justice not should not be the aim of tort
Not the aim of tort as it requires fault
Inefficient: Expensive and only compensates a small proportion of victims
social security system would be more fair
Unequal: Successful claimants receive high awards while those relying on
social security receive much less
Deterrence
o Threat of tort liability promotes economic efficiency eg. a reduction in the accident
rate to the extent that is efficient
It is about corrective justice
Criticism of fault principle
Basis: Morally right that a person who injures another through fault should have to
compensate
CA: Once there is fault, all compensation is given to C
o Atiyah: Compensation bears no relation to the degree of fault & the means of D
o Atiyah: Harm-doer may be legally liable without being morally culpable and vice versa
o Eg. Insurance is used as a loss-distribution mechanism to shift liability to parties not
at fault
o If the law reflected morality, it would not adopt an objective definition of fault
o But may not be bad main purpose of the law could be to provide compensation
rather than to evaluate moral fault
o If so, criteria of compensation should be whether C has been injured, regardless of
how. Problem of tort system is that it fails to compensate many others who have
suffered injuries in circumstances that do not fall within the tort system
,Alternatives to tort law
“No-fault” compensation alongside or in place of the law of tort (eg. New Zealand)
Atiyah, Holmes: Abolition of tortious liability for personal injuries encourage an increase in
self-reliance by getting first-party insurance
Defamation
It is to be noted that the 2013 Defamation Act is not designed to codify the law of
defamation. (Davis LJ, Lachaux). Discuss. (2019)
Intro
2013 Defamation Act was not intended to codify the law of defamation but rather
amend it (Davis LJ, Lachaux) address existing problems
Existing problems
o Blurred distinction between libel and slander
o Abolishment of common law defences of justification, fair comment and the
Reynolds defence in sections 2,3 and 4 of Act
Ultimately, both codification and amendment are merely mechanisms that Parliament
adopts to best balance between protecting Cs who suffer unjustified harms to
reputation and preserving freedom of speech in society
o Johnson: In the modern era, courts are ‘far more conscious’ of the value of
freedom of expression likely to result in an expansive interpretation of
defences
Parliament’s intention of amending law of defamation
Address outdated libel laws and shift the power away from the ‘powerful and wealthy
to stifle fair criticism’ (Nick Clegg) restore balance between protecting C who
suffer unjustified harms to their reputation & preserving freedom of speech in society
However, may also have been to codify the law to increase legal certainty (Orestis)
statute serves as overarching authority, but previous common law serves as
guidance on interpreting statute
o Certainty was crucial in English legal system 2008 study concluded that the
cost of libel proceedings in England was 140 times higher than an average
European state due to the complex law and lack of clarity in its
interpretation
Defamation Act amended the law regarding libel and slander its interpretation caused
confusion but now largely resolved
Common law: Libel reputational loss was presumed while special damage had to be
proved for slander (Thorley) exception of imputations of an indictable criminal
offence and professional incompetence
Act blurred this distinction s.1(1) requires serious harm to be proven regardless of
whether it is libel or slander
CA: Act may not have amended this requirement but merely codified it as common
law was already moving towards this new stance
o Thornton: Tugendhat J: Common law already required C to show a likelihood
that C would suffer adverse consequences in terms of ‘less favourable
, treatment at the hands of right-thinking others’ however not conclusive as
to whether common law was moving towards new stance as he did not
determine whether his conclusion on the seriousness threshold, combined with
Jameel’s ruling renders libel no longer actionable per se
o Ambiguity is highlighted by the CA in Lachaux who rejected the notion
that evidence of actual damage is needed to show that a defamatory statement
is likely to cause serious reputational harm insists that libel remains
actionable per se
o Confusion has been largely resolved by SC in Lachaux who rejected CA’s
approach
Lord Sumption: CA’s interpretation would not have altered the
existing common law contrary to parliament’s intention
Serious harm must be determined with reference to actual facts.
Whether serious harm is likely to occur is also a factual question based
on probability
CA: Parliament’s aim was to amend the law to require a ‘more demanding’ approach
relative to the existing common law did amend the law but still largely coherent
with common law
o Parliament had decided on the requirement of ‘serious harm’ only after
considering both ‘substantial harm’ and ‘serious and substantial harm’
o As Tugendhat J’s test in Thornton only required a ‘substantial harm’
Warby J in Lachaux inferred that Parliament intended to ‘raise the bar’ beyond
the Thornton position in the 2013 Act
o But Warby J does acknowledge that Parliament did not intend to radically alter
the common law position
Still possible to find that words are defamatory based on inference
If a public figure is accused in the media of a ‘grave imputation’
hard to require the public figure to call on witnesses to say whether
they thought worse of C after the publication. Court will objectively
assess the meaning and defamatory tendency of the words, per
common law
o Given that ‘likely to cause serious harm’ to C’s reputation is sufficient
Descheemaeker: C may be able to recover loss even though loss never
occurred & may never occur overly claimant-friendly (Mullis & Scott)
Defamation Act codified the common law defence of justification under the name of
defence of truth (s.2 of Act)
Common law: D has a defence if he can establish the ‘substantial truth’ of the ‘sting
of the charge’ (Edwards). Fact that D merely repeated the imputation is not a valid
defence (Stern)
s.2(1) Act likewise requires D to show that defamatory statement is ‘substantially
true’ Act has no change of substance to the previous law
Affirmed by the Explanatory Notes of the Act states that s.2(1) simply
‘incorporates’ the repetition rule
