Week 1 What is Tort: Theory and Critique (MCQ)
Definition
● “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.” (R Stevens)
● “In tort law, a claimant, C, will have a cause of action if either (i) she has had her rights
wrongly infringed or (ii) she has incurred a non-trivial loss, injury or damage that was
caused by certain wrongful conduct on the part of a defendant, D.” (J Murphy)
● Fixed by law not contract
● Burden of proof: tort (on the balance of probabilities) criminal (beyond reasonable doubt)
● Aims: compensation not protecting expectations. Rights against the whole world
rather than inter parties. Corrective Justice
● Hierarchy of interests
Theories on purpose of Tort Law
,● Interpretive theories: tries to explain whatever it tries to interpret. It helps understand
what it is.
● Prescriptive theories: all about “is tort law any good?” (eg. Should replace with
compensation scheme) (saying tort law is awful and should be replaced is a prescriptive
theory)
● Teleological theories: tort law aims at a goal to promote society as a whole. Policy
reasoning for society rather than just the parties. However, tort law not always most
efficient to benefit society.
○ Compensation & Deterrence: A type of teleological theory: Tort law as a
goal of society. The purpose of tort law is to deter bad behavior. To deter
people from committing anti-social behaviour. And that they are compensated for
the wrongs committed.
■ Not about justice between individuals, but rather, achieving policy goals
for society as a whole.
■ Deterrence of antisocial conduct, and compensation for those who have
been injured.
○ Enterprise Liability/Risk: A type of teleological theory: not to deter but to
spread out the loss. The loss is shared out (eg. Car insurance in case of car
crash). The losses are not born by each individual but by society as a whole.
○ Economic Deterrence Theory: Also spreading loss but by maximizing the
overall benefit to society. (Utilitarianism) The greatest happiness for the
greatest number. Tries to achieve optimal balance of accidents and precautions.
(A world with no accidents decreases overall benefit as people will be too
precautious.)
■ Loss-prevention and the maximisation of well-being
■ People should internalise negative externalities
■ Tort should achieve the optimal balance of precautions and accidents
● Deontic theories: About rights and wrongs of the individuals. “Principled” reasoning.
However, struggles with policy reasoning and difficulty is ascribing costs to society.
○ Corrective Justice: A type of Deontic theory: Tort law is about correcting
injustices happening to 2 people. Relationship of claimant and defendant, by
the wrong committed to the defendant. The job is to correct the wrong committed.
○ Rights Theory: A type of Deontic theory: Tort law protects general rights. Only
focuses on the claimant and not the defendant. Only about the claimants rights
being violated. Claimant focused.
, ■ “The law of torts is concerned with the secondary obligations generated
by the infringement of primary rights.” R Stevens
● No grand unified theory: Each of these the previous theories are all part of the
puzzle and all relevant concerns in different aspects of tort law. There is no one
theory that explains all of tort law.
Critique (Lord Sumption)
● Personal injury claims high cost to society (1% GDP)
● Injury caused by someone leads to a lot of benefit, injury caused by no one leads to no
benefit, even though it has the same effect.
● Insurance removes the deterrent effect.
● Why do people approve of Tort law even though there is no benefit to society?
○ ‘he who causes injury must make it good’; (retribution and corrective justice)
and
○ People believe it is the proper function of the courts to find facts and distribute
blame, for the satisfaction of the victims.
● Due to the lower objective standards negligence can only be justified by social utility/
Defending Tort Law:
● Challenging the premises;
○ corrective justice not social utility: Sumption says the objective standard isn’t
justified by notions like blame and responsibility, so it must be justified by “social
utility”. Because it imposes costs on society.
○ However, corrective justice: Does not matter if negligent is morally culpable. It
is about what is fair for the parties. It is about the fairness between the
claimant and defendant. Focuses on both individuals and the cost to society is
to do justice between the individuals. The same effect on the claimant regardless
of the defendant’s position. (A Beever, ‘Corrective Justice and Personal
Responsibility’)
● Challenging the conclusions; or
○ Does it maximise utility: Tort still deters even with insurance — no claims bonus,
insurers involved in increased safety, organisational liability still effective.
○ BUT…in reality, is it unarguable that tort genuinely achieves optimal deterrence
by minimising the sum of: (i) the costs of accident prevention; (ii) the costs
resulting from accidents; and (iii) the costs of administering the system.
, ● Challenging the practicality of alternatives.
○ Two options for reform:
○ (A) accident compensation schemes, and
■ removes ‘fault-discrimination’, but ‘cause-discrimination’— accident
victims still end up better off than people born with disability.
○ (B) compensation for all injuries, however caused.
■ (i) full compensation for all injuries; or (ii) equalising compensation for all
injuries at lower level.
■ Neither is practical. The problem with (i) is that it is vastly too expensive.
The problem with (ii) is that it strips rights from accident victims and is
unlikely to have any support or win votes.
Seminar 1 Duty of Care
Negligence
● Negligence is the breach of a legal duty to take care which caused the claimant to be
harmed. (W&J)
● Three elements need to be fulfilled for a claim of negligence to be found.
○ D owed C a duty of care; (based on (analogous) precedent)
○ D breached that duty; (reasonable standard of care)
○ D’s breach caused damage which is not too remote. (legal and factual
causation)
● Tort of negligence was established in Donoghue v Stevenson. (never cite this in a
problem question).
● Negligence is a tort which is not actionable per se - requires damage.
○ Dryden & Ors v Johnson Matthey PLC [2018]
■ Cs developed platinum salt sensitization due to D’s negligence. Platinum
salts are not encountered in everyday life, so for ordinary people this
would cause no problems at all. However, for the Cs, it meant they could
no longer do any work in the “red zones” of the factory.
, ■ They have suffered bodily damage as they could no longer do their
jobs and had to seek other employment. So it is economic loss
consequent on actionable personal injury.
Duty of Care
● Duty of care is the first of three elements in the tort of negligence that has to be
established.
○ Carelessness alone does not = liability.
○ The defendant has to also be in a relationship to the claimant where their
carelessness carries legal consequences.
■ “A man is entitled to be as negligent as he pleases towards the whole
world if he owes no duty to them.” (Lord Esher MR, Le Lievre v Gould
(1893))
○ “It is never sufficient simply to ask whether A owes B a duty of care. It is always
necessary to determine the scope of the duty by reference to the kind of
damage from which A must take care to hold B harmless.” (Lord Bridge, Caparo
Industries v Dickman [1990] 2 AC 605)
○ Kind of damage: What aspect of interest was inflicted: Mainly concerned with
property damage or physical injury
● The duty of care concept is seen by many as a sort of control device, which the courts
employ to limit the scope of negligence liability.
● There are a number of reasons why the courts might be reluctant to impose a duty of
care.
○ Not to impose ‘crushing’ liability on a particular individual or class of
defendants—that is, ‘liability in an indeterminate amount for an
indeterminate time to an indeterminate class’ (Ultramares Corporation v
Touche, Niven & Co [1931]).
○ A related wish may also be to prevent a ‘flood’ of claims which may in turn clog
up or slow down the tort system as a mechanism for compensation.
○ The courts may also wish to seek to avoid the more negative aspects of
deterrence—that is, the danger of ‘overkill’.
, ○ Finally, the courts may recognise that in some circumstances there is nothing
wrong with the sort of harm the defendant has caused —that is, that it is
sometimes entirely reasonable to act in ways that leave others worse off. (failing
a student)
● 2 views of duty of care
○ Cynical: is about attributing or shifting losses, and hence the key question is: Do
we want to impose liability in these circumstances, on this defendant, for this
injury?
■ On this basis the purpose of the duty of care inquiry is simply to weigh up
the pros and cons of requiring the defendant to bear the claimant’s
losses.
○ Idealist: By contrast, the idealist view suggests that tort law is concerned
primarily with telling people how they may and may not act. So, to impose a duty
of care on a defendant is not simply to say that they will be liable if they
carelessly injure someone, but that they must actually ‘take care’.
Three key questions:
1. Was what D did an act or an omission?
a. Topp v London Country Bus [1993] 1 WLR 976
i. Facts: D left bus with keys in ignition, TP stole the bus and killed C.
ii. Omission as he forgot to take his keys. No general duty to save people,
only duty to not harm people.
iii. Held: D not liable, No DoC
2. Was the damage to someone in C’s position reasonably foreseeable?
a. Haley v London Electricity Board Respondents [1965] AC 778
i. Facts: D’s worker dug a trench along the pavement, laying a hammer
across each end, to stop people falling in. C was blind, didn’t realise there
was a trench, and fell in.
ii. Held: C was owed a duty of care as it was reasonably foreseeable that
a blind person would be walking along the pavement in London.
iii. DoC = Acts which reasonably foreseeably cause physical injury
3. Which aspect of the claimant’s interest was affected?
a. Simple: Physical injury and Property damage (Always)
Definition
● “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.” (R Stevens)
● “In tort law, a claimant, C, will have a cause of action if either (i) she has had her rights
wrongly infringed or (ii) she has incurred a non-trivial loss, injury or damage that was
caused by certain wrongful conduct on the part of a defendant, D.” (J Murphy)
● Fixed by law not contract
● Burden of proof: tort (on the balance of probabilities) criminal (beyond reasonable doubt)
● Aims: compensation not protecting expectations. Rights against the whole world
rather than inter parties. Corrective Justice
● Hierarchy of interests
Theories on purpose of Tort Law
,● Interpretive theories: tries to explain whatever it tries to interpret. It helps understand
what it is.
● Prescriptive theories: all about “is tort law any good?” (eg. Should replace with
compensation scheme) (saying tort law is awful and should be replaced is a prescriptive
theory)
● Teleological theories: tort law aims at a goal to promote society as a whole. Policy
reasoning for society rather than just the parties. However, tort law not always most
efficient to benefit society.
○ Compensation & Deterrence: A type of teleological theory: Tort law as a
goal of society. The purpose of tort law is to deter bad behavior. To deter
people from committing anti-social behaviour. And that they are compensated for
the wrongs committed.
■ Not about justice between individuals, but rather, achieving policy goals
for society as a whole.
■ Deterrence of antisocial conduct, and compensation for those who have
been injured.
○ Enterprise Liability/Risk: A type of teleological theory: not to deter but to
spread out the loss. The loss is shared out (eg. Car insurance in case of car
crash). The losses are not born by each individual but by society as a whole.
○ Economic Deterrence Theory: Also spreading loss but by maximizing the
overall benefit to society. (Utilitarianism) The greatest happiness for the
greatest number. Tries to achieve optimal balance of accidents and precautions.
(A world with no accidents decreases overall benefit as people will be too
precautious.)
■ Loss-prevention and the maximisation of well-being
■ People should internalise negative externalities
■ Tort should achieve the optimal balance of precautions and accidents
● Deontic theories: About rights and wrongs of the individuals. “Principled” reasoning.
However, struggles with policy reasoning and difficulty is ascribing costs to society.
○ Corrective Justice: A type of Deontic theory: Tort law is about correcting
injustices happening to 2 people. Relationship of claimant and defendant, by
the wrong committed to the defendant. The job is to correct the wrong committed.
○ Rights Theory: A type of Deontic theory: Tort law protects general rights. Only
focuses on the claimant and not the defendant. Only about the claimants rights
being violated. Claimant focused.
, ■ “The law of torts is concerned with the secondary obligations generated
by the infringement of primary rights.” R Stevens
● No grand unified theory: Each of these the previous theories are all part of the
puzzle and all relevant concerns in different aspects of tort law. There is no one
theory that explains all of tort law.
Critique (Lord Sumption)
● Personal injury claims high cost to society (1% GDP)
● Injury caused by someone leads to a lot of benefit, injury caused by no one leads to no
benefit, even though it has the same effect.
● Insurance removes the deterrent effect.
● Why do people approve of Tort law even though there is no benefit to society?
○ ‘he who causes injury must make it good’; (retribution and corrective justice)
and
○ People believe it is the proper function of the courts to find facts and distribute
blame, for the satisfaction of the victims.
● Due to the lower objective standards negligence can only be justified by social utility/
Defending Tort Law:
● Challenging the premises;
○ corrective justice not social utility: Sumption says the objective standard isn’t
justified by notions like blame and responsibility, so it must be justified by “social
utility”. Because it imposes costs on society.
○ However, corrective justice: Does not matter if negligent is morally culpable. It
is about what is fair for the parties. It is about the fairness between the
claimant and defendant. Focuses on both individuals and the cost to society is
to do justice between the individuals. The same effect on the claimant regardless
of the defendant’s position. (A Beever, ‘Corrective Justice and Personal
Responsibility’)
● Challenging the conclusions; or
○ Does it maximise utility: Tort still deters even with insurance — no claims bonus,
insurers involved in increased safety, organisational liability still effective.
○ BUT…in reality, is it unarguable that tort genuinely achieves optimal deterrence
by minimising the sum of: (i) the costs of accident prevention; (ii) the costs
resulting from accidents; and (iii) the costs of administering the system.
, ● Challenging the practicality of alternatives.
○ Two options for reform:
○ (A) accident compensation schemes, and
■ removes ‘fault-discrimination’, but ‘cause-discrimination’— accident
victims still end up better off than people born with disability.
○ (B) compensation for all injuries, however caused.
■ (i) full compensation for all injuries; or (ii) equalising compensation for all
injuries at lower level.
■ Neither is practical. The problem with (i) is that it is vastly too expensive.
The problem with (ii) is that it strips rights from accident victims and is
unlikely to have any support or win votes.
Seminar 1 Duty of Care
Negligence
● Negligence is the breach of a legal duty to take care which caused the claimant to be
harmed. (W&J)
● Three elements need to be fulfilled for a claim of negligence to be found.
○ D owed C a duty of care; (based on (analogous) precedent)
○ D breached that duty; (reasonable standard of care)
○ D’s breach caused damage which is not too remote. (legal and factual
causation)
● Tort of negligence was established in Donoghue v Stevenson. (never cite this in a
problem question).
● Negligence is a tort which is not actionable per se - requires damage.
○ Dryden & Ors v Johnson Matthey PLC [2018]
■ Cs developed platinum salt sensitization due to D’s negligence. Platinum
salts are not encountered in everyday life, so for ordinary people this
would cause no problems at all. However, for the Cs, it meant they could
no longer do any work in the “red zones” of the factory.
, ■ They have suffered bodily damage as they could no longer do their
jobs and had to seek other employment. So it is economic loss
consequent on actionable personal injury.
Duty of Care
● Duty of care is the first of three elements in the tort of negligence that has to be
established.
○ Carelessness alone does not = liability.
○ The defendant has to also be in a relationship to the claimant where their
carelessness carries legal consequences.
■ “A man is entitled to be as negligent as he pleases towards the whole
world if he owes no duty to them.” (Lord Esher MR, Le Lievre v Gould
(1893))
○ “It is never sufficient simply to ask whether A owes B a duty of care. It is always
necessary to determine the scope of the duty by reference to the kind of
damage from which A must take care to hold B harmless.” (Lord Bridge, Caparo
Industries v Dickman [1990] 2 AC 605)
○ Kind of damage: What aspect of interest was inflicted: Mainly concerned with
property damage or physical injury
● The duty of care concept is seen by many as a sort of control device, which the courts
employ to limit the scope of negligence liability.
● There are a number of reasons why the courts might be reluctant to impose a duty of
care.
○ Not to impose ‘crushing’ liability on a particular individual or class of
defendants—that is, ‘liability in an indeterminate amount for an
indeterminate time to an indeterminate class’ (Ultramares Corporation v
Touche, Niven & Co [1931]).
○ A related wish may also be to prevent a ‘flood’ of claims which may in turn clog
up or slow down the tort system as a mechanism for compensation.
○ The courts may also wish to seek to avoid the more negative aspects of
deterrence—that is, the danger of ‘overkill’.
, ○ Finally, the courts may recognise that in some circumstances there is nothing
wrong with the sort of harm the defendant has caused —that is, that it is
sometimes entirely reasonable to act in ways that leave others worse off. (failing
a student)
● 2 views of duty of care
○ Cynical: is about attributing or shifting losses, and hence the key question is: Do
we want to impose liability in these circumstances, on this defendant, for this
injury?
■ On this basis the purpose of the duty of care inquiry is simply to weigh up
the pros and cons of requiring the defendant to bear the claimant’s
losses.
○ Idealist: By contrast, the idealist view suggests that tort law is concerned
primarily with telling people how they may and may not act. So, to impose a duty
of care on a defendant is not simply to say that they will be liable if they
carelessly injure someone, but that they must actually ‘take care’.
Three key questions:
1. Was what D did an act or an omission?
a. Topp v London Country Bus [1993] 1 WLR 976
i. Facts: D left bus with keys in ignition, TP stole the bus and killed C.
ii. Omission as he forgot to take his keys. No general duty to save people,
only duty to not harm people.
iii. Held: D not liable, No DoC
2. Was the damage to someone in C’s position reasonably foreseeable?
a. Haley v London Electricity Board Respondents [1965] AC 778
i. Facts: D’s worker dug a trench along the pavement, laying a hammer
across each end, to stop people falling in. C was blind, didn’t realise there
was a trench, and fell in.
ii. Held: C was owed a duty of care as it was reasonably foreseeable that
a blind person would be walking along the pavement in London.
iii. DoC = Acts which reasonably foreseeably cause physical injury
3. Which aspect of the claimant’s interest was affected?
a. Simple: Physical injury and Property damage (Always)
