Tort Essay Plans:
INTRO TO TORT:
Q: ‘Does the law of torts consist of a fundamental general principle that it is wrongful to cause harm
to other persons in the absence of some specific ground of justification or excuse, or does it consist
of a number of specific rules prohibiting certain kinds of harmful activity, and leaving all the residue
outside the sphere of legal responsibility?’ (Sir John Salmond). Discuss.
INTRO:
key debate - general principle that unjustified harm is wrongful (unitary) OR collection of
specific wrongs w/out overarching rule (Pluralistic)
main argument: tort law cant be reduced to a single theory as its purposes are too diverse
(Hedley). While (Donoghue) suggests unity, its operational application through exceptions
(Hill; Murphy) and rigid rules in defam/trespass validate pluralism instead
roadmap: asses which approach tort law aligns with by examining DOC in neg, trespass,
defam and briefly nuisance
P1 - Negligence - Unified
neg operates on general principles
DOC - general by design (foreseeability and proximity) but operational reality = specific rules
o Donoghue v Stevenson: neighbour principle - duty where harm is reasonably
foreseeable
neighbour = persons closely/directly affected by dfs act ought to reasonably
have them in contemplation
to create flexible, ethical standard applicable beyond case facts (snail ginger
beer)
rejected old strict privity of contract approach
unified liability transcend existing fragmented torts (trespass)/reject
arbitrary limited by proposing single DOC test
HL acknowledged society evolves and law must adapt to be as ‘various and
manifold as human errancy’ -> enabled expansion into new contexts e.g.
psych harm
flexibility address novel scenarios w/out leg, coherent test, moral legitimacy
(social responsibility - love thy neighbour)
o neighbour principle suggest unitary, but its flexibility allowed courts to impose
specific limits (Alcock/Hill) revealing tort law’s pluralistic theory
P2 - Negligence - Pluralistic
neg has specific rules suggest more pluralism
Specific DOC situations - no general DOC
o Hill v CC West Yorkshire: police no general DOC to individual victims
o floodgates, police work inhibited, already operate at high standard
o policy-driven carveout contradicts ‘neighbour principle
specific DOC -> pure econ loss
o Murphy v Brentwood DC: no duty for neg construction causing pure econ loss
limited econ burden + builder liability
exclusion of pure econ loss (not extension of Donoghue)
o c.f. Targett; Cooke: murphy criticised as overly restrictive and too much emphasis on
damaging other property ( transmissible warrant of qual -> social policy builder
should be liable to occupiers of property)
o but reflects deliberate policy choice to prioritise contract law
psych harm - strict rules
, o Alcock: secondary Vs must meet proximity foreseeability and relationship tests
o White v CC South Yorkshire: rescuers denied compensation unless meet strict
criteria
o pluralism, not unified
o Steele: avoid covering for rescuers in White and rejecting bereaved family in Alcock
if only to maintain consistency w/ Alcock can argue court’s decision ≠
entirely based on unitary/pluarlism dichotomy corrective justice
causation - rigid exceptions
o Barker: proportional liability in mesothelioma, reversed by Compensation Act 2006
s.3 shows leg intervention > common law -> avoid liability of mesothelioma falling on
state -> legacy of industrial revolution, don’t want to smear its name/public purse
pluralism neg ≠ just unjustified harm - balance fairness, practicality and policy
neg masks pluralism behind GPs: trespass/defam reject unitary -> openly embrace specific
rules (bc strict liability, actionable per se need to set out exact rules ppl violated to justify
imposing liability)
P3 - Trespass to the Person - Pluralistic
intentional torts (Iqbal) w/ strict requirements
o Assault:
Stephens v Myers - within sufficient range to make clear battery was
imminent -> prevents trivial claims requiring clear, present danger not mere
words/distant threats
Ireland - make cl fear they could be attacked at any moment -> recognise
psych elements but limits to objectively reasonable fear not hypersensitivity
strict = certainty, prevent frivolous claims
autonomy protects Free speech/action unless objectively threaten
another => specific wrongs
o Battery:
Wilson v Pringle - hostility/not aggression -> balance social interaction w/
personal boundaries (e.g. accidental bump in crowds)
specific wrongs
balance autonomy, certainty and policy
o actionable per se/all damage foreseeable and unforeseeable covered
o intention - higher threshold -> not overburden court w/ minor aggrievance
o distinguish accidental/intentional violation of bodily autonomy
o unlike neg - need specific act types (threat/contact)
o derived from trespass (focus on wrongful acts ≠ harmful outcomes)
P4 - Defamation - Pluralistic
must show defam meaning (Berkoff v Burchill - lower cl’s estimation, ridicule, contempt)
must show serious harm s.1 DA/Jameel v Wall St (action must be worth the candle)
Lachaux -> no longer presume damage. show srs harm suffered/likely (to whom pub;
# receivers, nature of statement, > substantial harm, tendency to cause not balance
of prob) = only specific rep harm merits redress => pluralism/specific wrongs
s.1(2) DA settled debates, companies must show £ loss normally defam actionable per se
(see defam plan)
policy choices fracture tort, social interest free speech > business rep (Patfield; Howarth)
o company just as/> powerful govt, free to criticise w/out liability risk
+ companies impact society/environment
- unelected, no state power so misinfo => direct £/rep harm
, + companies can use regulatory body, fraud law -> NB may not fully
protect against damage
+ defam used to silence critics
pluralistic: allow deserving claims, avoid overburden courts but flexible where needed and
allow free criticism w/out liability fears
CONC:
tort law’s façade of generality (broad DOC Donoghue) is undermined by its rule-bound
reality (defam, trespass) and policy driven exceptions (Neg). Its mosaic of wrongs comes
from courts prioritising policy coherence over theoretical purity.
Trespass to the Person:
P Birks, “Harassment and Hubris: The Right to an Equality of Respect” (1997) 32 Irish Jurist 1.
common law already recognises/should fully recognise legal wrong protecting human
dignity/individuality
address insults to personal dignity e.g. harassment, privacy violations and other
disrespectful acts rather than treating each issue separately (privacy, reputation)
argues unifying these protections under a single principle like in Roman law would
better uphold equality/respect in society
suggests common law is close to roman ideal
recognising broader tort would strengthen legal protections for human dignity
linked to human dignity but separate, reputation abt social standing in society;
harassment abt bodily integrity. unifying would undermine that difference or makes
one tort with multiple exceptions making its underlying reason/purpose more vague
or confuse them as serving the same purpose which they do not
Defamation:
Q 2019 Paper: “It is to be noted that the 2013 [Defamation] Act is not designed to codify the
law of defamation.” (Davis LJ, Lachaux v Independent Print Ltd)Discuss.
Q 2020 Paper: ‘Defences to the tort of defamation are weighted too heavily towards
freedom of expression, at the expense of protecting the reputations of individuals.’ Discuss.
Q: The DA 2013 was a missed opportunity to reform the most obviously outdated elements
of the cause of action, such as the overly inclusive tests for what’s defamatory and the
unnecessary strict liability rule. The few amendments it did make unfortunately left
underlying and unsatisfactory common law rules in place. Discuss.
INTRO:
tension: FS and rep protection
defam law swings pendulum between the 2 but must strike a satisfactory balance
to assess whether DA made satisfactory changes/missed opportunity I will:
o look at the tests for what is defam and whether or not they are overly
inclusive
o extent to which DA interacts with or impacts common law meaning of
‘defamatory statement’ and whether it’s outdated/still overly
inclusive/balance been struck
o other aspects of defam law (strict liability) and whether law struck right
balance
P1: Common law + defam meaning – extent to which its changed
INTRO TO TORT:
Q: ‘Does the law of torts consist of a fundamental general principle that it is wrongful to cause harm
to other persons in the absence of some specific ground of justification or excuse, or does it consist
of a number of specific rules prohibiting certain kinds of harmful activity, and leaving all the residue
outside the sphere of legal responsibility?’ (Sir John Salmond). Discuss.
INTRO:
key debate - general principle that unjustified harm is wrongful (unitary) OR collection of
specific wrongs w/out overarching rule (Pluralistic)
main argument: tort law cant be reduced to a single theory as its purposes are too diverse
(Hedley). While (Donoghue) suggests unity, its operational application through exceptions
(Hill; Murphy) and rigid rules in defam/trespass validate pluralism instead
roadmap: asses which approach tort law aligns with by examining DOC in neg, trespass,
defam and briefly nuisance
P1 - Negligence - Unified
neg operates on general principles
DOC - general by design (foreseeability and proximity) but operational reality = specific rules
o Donoghue v Stevenson: neighbour principle - duty where harm is reasonably
foreseeable
neighbour = persons closely/directly affected by dfs act ought to reasonably
have them in contemplation
to create flexible, ethical standard applicable beyond case facts (snail ginger
beer)
rejected old strict privity of contract approach
unified liability transcend existing fragmented torts (trespass)/reject
arbitrary limited by proposing single DOC test
HL acknowledged society evolves and law must adapt to be as ‘various and
manifold as human errancy’ -> enabled expansion into new contexts e.g.
psych harm
flexibility address novel scenarios w/out leg, coherent test, moral legitimacy
(social responsibility - love thy neighbour)
o neighbour principle suggest unitary, but its flexibility allowed courts to impose
specific limits (Alcock/Hill) revealing tort law’s pluralistic theory
P2 - Negligence - Pluralistic
neg has specific rules suggest more pluralism
Specific DOC situations - no general DOC
o Hill v CC West Yorkshire: police no general DOC to individual victims
o floodgates, police work inhibited, already operate at high standard
o policy-driven carveout contradicts ‘neighbour principle
specific DOC -> pure econ loss
o Murphy v Brentwood DC: no duty for neg construction causing pure econ loss
limited econ burden + builder liability
exclusion of pure econ loss (not extension of Donoghue)
o c.f. Targett; Cooke: murphy criticised as overly restrictive and too much emphasis on
damaging other property ( transmissible warrant of qual -> social policy builder
should be liable to occupiers of property)
o but reflects deliberate policy choice to prioritise contract law
psych harm - strict rules
, o Alcock: secondary Vs must meet proximity foreseeability and relationship tests
o White v CC South Yorkshire: rescuers denied compensation unless meet strict
criteria
o pluralism, not unified
o Steele: avoid covering for rescuers in White and rejecting bereaved family in Alcock
if only to maintain consistency w/ Alcock can argue court’s decision ≠
entirely based on unitary/pluarlism dichotomy corrective justice
causation - rigid exceptions
o Barker: proportional liability in mesothelioma, reversed by Compensation Act 2006
s.3 shows leg intervention > common law -> avoid liability of mesothelioma falling on
state -> legacy of industrial revolution, don’t want to smear its name/public purse
pluralism neg ≠ just unjustified harm - balance fairness, practicality and policy
neg masks pluralism behind GPs: trespass/defam reject unitary -> openly embrace specific
rules (bc strict liability, actionable per se need to set out exact rules ppl violated to justify
imposing liability)
P3 - Trespass to the Person - Pluralistic
intentional torts (Iqbal) w/ strict requirements
o Assault:
Stephens v Myers - within sufficient range to make clear battery was
imminent -> prevents trivial claims requiring clear, present danger not mere
words/distant threats
Ireland - make cl fear they could be attacked at any moment -> recognise
psych elements but limits to objectively reasonable fear not hypersensitivity
strict = certainty, prevent frivolous claims
autonomy protects Free speech/action unless objectively threaten
another => specific wrongs
o Battery:
Wilson v Pringle - hostility/not aggression -> balance social interaction w/
personal boundaries (e.g. accidental bump in crowds)
specific wrongs
balance autonomy, certainty and policy
o actionable per se/all damage foreseeable and unforeseeable covered
o intention - higher threshold -> not overburden court w/ minor aggrievance
o distinguish accidental/intentional violation of bodily autonomy
o unlike neg - need specific act types (threat/contact)
o derived from trespass (focus on wrongful acts ≠ harmful outcomes)
P4 - Defamation - Pluralistic
must show defam meaning (Berkoff v Burchill - lower cl’s estimation, ridicule, contempt)
must show serious harm s.1 DA/Jameel v Wall St (action must be worth the candle)
Lachaux -> no longer presume damage. show srs harm suffered/likely (to whom pub;
# receivers, nature of statement, > substantial harm, tendency to cause not balance
of prob) = only specific rep harm merits redress => pluralism/specific wrongs
s.1(2) DA settled debates, companies must show £ loss normally defam actionable per se
(see defam plan)
policy choices fracture tort, social interest free speech > business rep (Patfield; Howarth)
o company just as/> powerful govt, free to criticise w/out liability risk
+ companies impact society/environment
- unelected, no state power so misinfo => direct £/rep harm
, + companies can use regulatory body, fraud law -> NB may not fully
protect against damage
+ defam used to silence critics
pluralistic: allow deserving claims, avoid overburden courts but flexible where needed and
allow free criticism w/out liability fears
CONC:
tort law’s façade of generality (broad DOC Donoghue) is undermined by its rule-bound
reality (defam, trespass) and policy driven exceptions (Neg). Its mosaic of wrongs comes
from courts prioritising policy coherence over theoretical purity.
Trespass to the Person:
P Birks, “Harassment and Hubris: The Right to an Equality of Respect” (1997) 32 Irish Jurist 1.
common law already recognises/should fully recognise legal wrong protecting human
dignity/individuality
address insults to personal dignity e.g. harassment, privacy violations and other
disrespectful acts rather than treating each issue separately (privacy, reputation)
argues unifying these protections under a single principle like in Roman law would
better uphold equality/respect in society
suggests common law is close to roman ideal
recognising broader tort would strengthen legal protections for human dignity
linked to human dignity but separate, reputation abt social standing in society;
harassment abt bodily integrity. unifying would undermine that difference or makes
one tort with multiple exceptions making its underlying reason/purpose more vague
or confuse them as serving the same purpose which they do not
Defamation:
Q 2019 Paper: “It is to be noted that the 2013 [Defamation] Act is not designed to codify the
law of defamation.” (Davis LJ, Lachaux v Independent Print Ltd)Discuss.
Q 2020 Paper: ‘Defences to the tort of defamation are weighted too heavily towards
freedom of expression, at the expense of protecting the reputations of individuals.’ Discuss.
Q: The DA 2013 was a missed opportunity to reform the most obviously outdated elements
of the cause of action, such as the overly inclusive tests for what’s defamatory and the
unnecessary strict liability rule. The few amendments it did make unfortunately left
underlying and unsatisfactory common law rules in place. Discuss.
INTRO:
tension: FS and rep protection
defam law swings pendulum between the 2 but must strike a satisfactory balance
to assess whether DA made satisfactory changes/missed opportunity I will:
o look at the tests for what is defam and whether or not they are overly
inclusive
o extent to which DA interacts with or impacts common law meaning of
‘defamatory statement’ and whether it’s outdated/still overly
inclusive/balance been struck
o other aspects of defam law (strict liability) and whether law struck right
balance
P1: Common law + defam meaning – extent to which its changed
