TORT LAW STUDY MANUAL
What will I achieve by studying this Manual?
Tort pervades most aspects of everyday life. Tort protects wide range of interests
Aims and functions of the law of tort and how tort operates in reality, how tort
overlaps with other areas of law (ie contract and crime), general principles which
underpin tort law (Unit 1)
Negligence: most important modern tort. Detailed law regulating when one person
owes another a duty to act carefully, distinction between situations in which a duty of
care is already established and “novel situations”, circumstances where this duty is
breached (Unit 2 sub 1)
Negligence: causation, tendency of the House to opt for pragmatic justice, practical
and legal implications of having multiple defendants to a potential claim, arguments
for defendant to escape or reduce liability. Analyse both sides of potential claim: start
with case and risk analysis and if potential defendant has potential defence then no
point in bringing the claim (Unit 2 sub 2)
Negligence: some particular applications regarding claims for psychiatric harm and
for economic loss (Unit 2 sub 3)
Remedies available in tort, focus on claims for damages for personal injury (Unit 3)
“Special liability regimes”: ‘Employers’ Liability’, ‘Occupiers’ Liability’, and
‘Product Liability’. Then tort of breach of statutory duty (Unit 4)
Torts that protect interests in land: trespass to land and private nuisance (latter
protects environment) (Unit 5)
Case analysis by identifying a client’s problem, finding the relevant tort(s) and
evaluating how the law applies to the set of facts (Unit 6)
UNIT 1
INTRODUCTION TO THE LAW OF TORT
Learning outcomes:
aims, functions and scope of the law of tort.
how tort operates in context, including the impact of insurance.
how tort overlaps and interrelates with the criminal law and contract law.
case analysis of problems in tort.
torts of assault, battery and the rule in Wilkinson v Downton, and application of these
torts to factual situations.
parameters of the tort of defamation and the action for misuse of private information,
and understand their importance in society.
1. Introduction
Historically tort law developed as a means of regulating and balancing the interests of
people who often lived in close proximity in a rural society: focus on protecting an
individual’s rights to property and on allowing a citizen to protect his own personal
integrity from deliberate interference by others
Industrialisation: focus shifted away from protecting personal rights to providing
compensation for injuries often caused by carelessness in a society which became
increasingly mechanised
, historical development of the law
2. What is tort?
2.1 Meaning of “Tort”
People who have suffered harm, injury or loss because of another person’s wrongdoing.
‘Tort’ = ‘wrong’ Tort = civil wrong
A tort involves the infringement of a legal right (or breach of a legal duty) and it gives rise to
a claim in the civil courts.
Tortfeasor = who commits a tort
Liability is tortious
The law of tort is the body of civil law which governs what happens when one person sues
another person because of what that other person has done. Tort claims in civil courts.
2.2 Remedies in Tort
Torts seek remedy for the wrong suffered, such as damages (financial compensation) and
injunctions.
2.3 Tort Distinguished from Crime
Criminal law: society as a whole has an interest in punishing a crime
Tort law: individuals who suffered harm want remedies
can overlap: both tortious and criminal liability
BUT differences:
Tort claims are brought by the injured person who will be seeking a remedy (often
damages) to compensate him. DIFFERENT Criminal actions are usually brought by a
public official (eg the Crown Prosecution Service) rather than the victim.
The main function of a tort claim is compensation of the victim. DIFFERENT The
main function of criminal proceedings is punishment of the offender.
Tort cases are dealt with by the civil courts (county court or High Court),
DIFFERENT criminal cases are dealt with by the criminal courts (magistrates’ court
or the Crown Court).
2.4 Tort Distinguished from Contract
Many similarities between contract and tort:
Both are civil claims which will be brought in the county court or High Court.
Claimants will usually seek damages as the principal remedy.
The principal functions of the two areas of law are similar: to compensate the
claimant for the loss suffered due to the defendant’s wrongdoing.
BUT important differences:
In contract, the parties’ obligations are fixed by the terms of the contract (ie the
agreement reached between them), sometimes iimplied terms most terms are usually
expressly agreed by the parties. DIFFERENT In tort, liability does not depend on any
consensus between the parties, it is determined by rules (largely judge-made) which
dictate whether the defendant’s wrongdoing constitutes a tort.
In contract, there has to be a contractual relationship between a claimant and a
defendant before a claim for breach of contract can arise. This means that only the
parties to the contract can sue. DIFFERENT In tort, the potential scope of liability is
much wider. As obligations in tort are imposed by law, they are owed to the world at
large and are not dependent on an agreement between the parties.
, Obligations in contract law are generally voluntarily undertaken (parties agree to enter
into the contract). DIFFERENT Obligations in tort are imposed on a defendant by
law.
Function of damages: the aim of damages in tort is to put the claimant back into the
position he would have been in had the tort not been committed. DIFFERENT the aim
of contract damages is to put the claimant into the position he would have been in had
the contract been properly performed.
2.5 The Possibility of a Claim in both Contract and Tort
Due to similarities of areas, potential claims in both contract and tort. Could be against same
defendant or different defendants
3. Functions of the law of tort
3.1 Compensation
One of main reasons why tort is used is to claim compensation for the injury or loss suffered.
Compensation of victims = law of tort’s principal function BUT its effectiveness is limited by
certain practical considerations, examples:
Victims need to go to court to achieve compensation, hence inevitable delay
Litigation is expensive
Defendant may not afford to compensate
The insured defendant
Where insurance exists it indemnifies the defendant against legal liability. Hence it protects
anyone who is injured in such a situation by guaranteeing that they will receive their
compensation.
Often, unless defendant is insured, no effective remedy (no compensation)
3.2 Deterrence
Other function of tort law, most relevant when defendants have no insurance (if I have no
money, I will not commit a tort).
Potential liability in tort may have a deterrent effect (even where someone is insured) if a
finding of negligence against the defendant could adversely affect his commercial or
professional reputation
3.3 Justice
Tort allows justice to be done. 2 aspects of justice:
retribution against the wrongdoer (they rarely pay damages out of their own pocket
thanks to insurance companies. Hence not really exact that tort satisfies this aim of
justice)
compensation for the victim
3.4 Vindication of Rights
Claimants may wish to make a ‘point of principle’ or initiate an investigation, or to provoke
the authorities into acting (civil claims for reasons other than compensation).
Particularly prevalent following large-scale disasters. See also deterrence function of tort.
4. The Range and Scope of Tort Law
Types of harm for which the law of tort is able to provide a remedy and some limitations on
the scope of tort law.
, Influence of human rights on tort law (direct influence of HRA 1998 on development of tort
law)
4.1 Different Types of Harm
The claimant must show that the loss or injury he has suffered is a type of harm recognised
by the existing law of tort, or he must persuade the courts to extend the law so as to protect
him.
Not necessarily tangible harm, some torts are “actionable per se” hence no need for actual
injury or damage (eg trespass to the person) For these torts, the infringement of a legal
right that is protected by the law of tort is all the ‘harm’ that the claimant needs to show.
Examples of tort: battery (actionable per se), assault (actionable per se), negligence,
defamation, private nuisance, trespass (actionable per se)
No remedy for harm coming from grief and anger (eg)
Bradford Corporation v Pickles [1895] AC 587: if a claimant is unable to show that he has
suffered a type of harm which is recognised by tort then his claim in tort will fail unless he
can convince the court to extend the law.
4.2 Policy Limitations on the Protections of Tort Law
No remedy and no protection even if suffered a harm recognised by tort law in case of
restrictions for policy reasons.
Limitations of a Claim in Tort
Problems in using negligence to pursue claims against public bodies such as the police
BUT the possibility of using a claim under the Human Rights Act 1998 against a public body
as an alternative claim where a tort action might not succeed (see Van Colle v Chief
Constable of Hertfordshire Police [2008] 3 All ER 977)
4.3 Tort and Human Rights
ECHR rights have effect in UK thanks to HRA 1998 in number of ways:
Section 6 HRA 1998: it is unlawful for a public authority to act in a way which is
incompatible with a Convention right
Section 7: allows a victim of such breach to bring proceedings against the public
authority
Section 8: gives the court power to award a remedy for such breach (including
damages)
Hence, where the defendant is a public body, the HRA 1998 may sometimes provide a direct
alternative to a claim in tort.
HRA 1998 may also indirectly influence the development of tort law.
Thanks to section 6, courts’ judgments (courts are public authorities) have to be compatible
with ECHR rights HENCE human rights have an indirect influence on the development of the
law of tort BUT not necessarily means that courts have to change principles of tort.
Tort and Human Rights
Mary Arden, ‘Human rights and civil wrongs: tort law under the spotlight’ [2010] Public Law
140
In some areas the HRA 1998 has ‘inspired law change’, especially in privacy
In other cases the courts have not extended existing causes of action to reflect
Convention rights, see Negligence ad Nuisance
