Tort Law Basics

Function of Tort Law Two main functions: - To determine the legal rights we have against other people - To determine the remedies will be available when those rights are violated Rights and Duties Three definitions of right - To describe what A has when A has a power to perform some kind of legal act o E.g. As power to sue B = As right to sue B - ** To describe what A has when the law imposes a legal duty on B to do X, and the law imposes that duty on B for As benefit o E.g. A has a right against B that B do X or B owes A to do X = rights and duties on the same side of the coin o E.g. Donoghue had a right against Stevenson that he take care that the ginger beer was safe to drink or Stevenson owed Donoghue a duty to take care that the ginger beer was safe to drink - To describe what A has when the law steps to protect some freedom or interest of As from being interfered with by other people o E.g. A has a right to freedom of speech o E.g. A has a right to sue B for damages if B defames A Rights in tort are based on 2nd definition - Remedies in tort are based on a violation of a right that and not a right to - Parties can only sue someone if they can show that they had a right against them that they did not do X (Allen v Flood) Range of Torts Torts of trespass against the person - Battery (unlawfully touching) - Assault (unlawfully making something think they are to be touched) - False imprisonment (unlawfully confining someone to a particular area) Negligence - D has breached a duty of care owed to a C - You must take reasonable care to avoid acts or omissions which would likely injure your neighbor, where your neighbor is someone who is so closely and directly affected by my act that I ought to reasonably have them in contemplation as being so affected Torts to land - Tort of trespass to land (unlawfully going onto someone elses land) - Tort of private nuisance (unlawfully interfering with amenity value of land in someone elses possession)

Other forms of tort of negligence involving a duty of care not to do something that is liable to damage someone else land / protect someone elses land from being damaged

Torts to goods - Trespass to goods (unlawfully touching anothers goods) - Conversion (treating anothers goods as though they are your own to dispose of) - Other forms of tort of negligence involving duty of care not to do something that is liable to damage someone else goods / protect someone elses goods from being damaged Personality torts - Impinging on someones ability to function as a person, or interact with other people - E.g. defamation, harassment, invasion of privacy Economic torts - Inflicting some kind of economic harm on someone else - Conspiracy (combining together with one or more people co cause someone loss for no good reason) - Deceit (intentionally / recklessly lying to someone to get them to act in a particular way) - Passing off (trading on goodwill attached to someones name / business) - Malicious falsehood (deliberately telling a third party lies about someone with object of causing them loss) Abuse of power torts - Misfeasance in public (public official unlawfully and intentionally causing someone loss) - Malicious prosecution (A instituting criminal proceedings against an innocent person for no good reason) Statutory torts - A will commit a statutory tort if o He breaches a duty that Parliament has imposed upon for benefit of B o Parliament has intended that a breach of that duty should be actionable in tort Society has triggered a change in the basic rights we owe each other - E.g. Donoghue v Stevenson = manufacturer has a right to consumer that his product is safe to use - E.g. Butterworth v Butterworth and Englefield = a husband (no longer) has right to interfere in his wifes future relationships after their separation - E.g. Art. 8 ECHR = Everyone has right to respect for his private and family life, his home and his correspondence (pendulum may swing again?)

Torts and Wrongs A wrong involves a breach of legal duty - Private wrong = breach of legal duty that has been owed to someone else (or violation of a right that someone else had against him) - Public wrong = breach of legal duty that has been owed to the society as a whole Definition of civil wrong - Any kind of wrong private or public that may be capable of giving rise to a right to bring an action (civil action) against the person who committed that wrong for damages - May be? Consider the Two Burglars Problem A can raise a defense of illegality against B if B tries to sue him for dropping the explosives during the burglary Importance of being a Victim The victim of the tort is the person who has a right that D not do X (the person whom D owes a duty not to do X) - Consider the Gullible Lovers Problem o It is not enough to show that she suffered as a result of Ds tort in relation to A o She will have to establish that she had a right against D that D not lie to A / D not intentionally and unlawfully cause her loss - E.g. Bourhill v Young o Young was riding too fast on a motorbike and crashed into a car; at the time of crash Bourhill was 50 feet away and by the time she reached the scene Youngs body had already been taken away o Bourhill fell ill (from seeing blood on the floor or from hearing the crash) and later miscarried a baby when she was 8 months pregnant o Bourhill sued Youngs estate for damages, but her claim was dismissed by HL; Young did not owe Bourhill specifically a duty to take care not to crash his bike - E.g. Hill v Chief Constable of West Yorkshire o Police failed to catch the Yorkshire Ripper before he could kill his last victim o D failed to do their job property and in doing so did something wrong to their employers o However, D did not owe C (the parent of the last victim) specifically any right to protect their interests and hence claim was dismissed - Notable exception: where A has committed a tort in relation to B and B has died, Bs family will be able to sue for damages o Under the Fatal Accidents Act 1976 o Loss of support damages loss of any economic support family would have received fro B o Bereavement damages to be claimed by Bs widow / parents

Loss and Compensation Model General principle - Where A commits a private wrong in relation to B and B consequentially suffers a loss = B is entitled to sue A for compensation - Where A causes B to suffer some loss without having done anything wrong but A is still held liable to compensate B for that loss o If A is injured as a result of a glass bottle fracturing, A cannot sue manufacturer not for negligence (A was merely unlucky her glass had microscopic and undetectable impurities in the glass) o However: Consumer Protection Act 1987 (manufacturers strictly liable for harm done to persons as a result of their products being dangerously defective) = A can sue Arguments against the LC model - Ignores many non-compensatory remedies that are standardly available in tort cases (below) / does not take into account development of new noncompensatory remedies o Injunction = court order requiring someone who is continually committing a tort to stop o Gain-based damages = court order requiring someone who has committed a tort to pay a reasonable sum for gain he obtained from loss - Cannot account for existence of torts committed without causing anyone else any loss o E.g. A goes to Bs house to watch TV because she has Bs keys and her own TV is broken = no loss but still need compensation? - Simply does not fit the way we think/speak about tort law o Liability arising from the CPA 1987 / Rylands v Fletcher rule etc. should not constitute a tort because at the deepest level a tort involves doing something wrong - However: the LC model has proved highly influential and both ^ types of loss are included Residual Wrongs Model General principle - Tort law is made up of all civil wrongs that are not dealt with under some other area of law - Only function is to provide us with a title under which we can group civil wrongs left over - However: McBride and Bagshaw argue that all the torts are interrelated; public nuisance falls under public wrong (its strangeness does not establish that RW model is correct) Tort Law and Contract Law Difference between contract and tort - Tort = determines what basic rights we enjoy against others + remedies available when these are violated

o More willing to provide us with rights that people do not make us worse off than make us better off o Tort rights come free of charge Contract = provides us with facility to alter the rights that tort law provides us with (entering into contracts toad or reduce our tort rights) o More willing to provide us with rights that make us better off (purpose of a contract) o Contract rights require a price (consideration) Distinction lessened by increasing willingness to recognize that if A assumes a responsibility to B then B will have a right in tort that A take care to do whatever it is that he assumed a responsibility for o The very act of entering into a contract can give rise to tort (e.g. homeowner can sue worker for breach of contract if he does not install the cupboard with reasonable care and skill + sue him in tort for failing to do a good job)

Are tort rights inalienable? - Law recognizes that no wrong is done to the willing - It is also possible to contract on top of tort law to give oneself contractual rights that tort does not offer for free o E.g. During duration of a film cinema surrenders the right it normally has as a landowner to ask someone to leave the premises if that someone is a movie viewer Tort Law and Equity Relationship between tort and equity - Tort a creation of the Courts of Common Law - Court of Chancery was willing to grant injunctions to tort claimants for whom damages were an inadequate remedy - This was CCs only involvement in tort; equitable rights recognized and enforced by CC had nothing to do with tort - Fusion of different branches of court did not eliminate difference between CL and equity in modern day o E.g. a breach of trust (has its roots in equity) is not a tort Invasion of privacy = neither a tort nor an equitable wrong - Has its roots in breach of confidence (equitable wrong) - Equity characteristic: possible sue someone for committing IoP even if what they are disclosing was not told to them by you / what they are disclosing is not secret anymore - Tort characteristic: remedies available are compensatory damages (which does not make sense for equitable wrong) Tort Law and Statue Law Creating tort law - Parliament can create statutory torts by giving people statutory rights and making sure their violation is actionable in tort (e.g. Protection from Harassment Act 1997)

When the specified remedy to a breach is not in the same way as normal common law tort (e.g. breach of ECHR) o D is said to commit a private wrong not a tort When a statutory right is created but it is unclear whether its violation is actionable in tort o Remedy is to seek a declaration of violation / injunction preventing violation o But often much caselaw on whether violation = statutory tort)

Modifying tort law - Either modifying/extending o Rights enjoyed under tort E.g. Occupiers Liability Act 1984 o Remedies that may be obtained when a tort is committed E.g. Law Reform Contributory Negligence Act 1945 Damages should be reduced so far as it is just and equitable having regard to how far C was to blame Previously no damages at all were recoverable Preventing contracting out - Preventing people from contracting out of tort law o E.g. S 2(1) of UCTA 1977 = any contractual provision which purports to prevent an individual / estate suing a business in negligence for killing/injuring him is void Requiring the courts do develop tort law in certain ways - Imposing duty on court to develop tort law in certain ways o Under HRA courts count as public bodies and have a duty to not act in a way that is inconsistent with rights set out in ECHR o Hence: courts must make sure tort law does not work against individuals rights + develop tort law as it applies between private individuals to give people greater protection under ECHR o Controversial: Court would be (e.g.) acting inconsistently with ECHR if they dont rid of the rule that there is no liability for failing to save a stranger from drowning Tort Law and Criminal Law There are many overlaps between tort and criminal - In many cases (e.g. rape / battery or GN manslaughter / negligence) one who commits a tort will also commit a crime - However: a tortfeasor is sued while a criminal is prosecuted - However: a tortfeasor is liable while a criminal is guilty - Exemplary damages may not be awarded against a tortfeasor who is already subject to criminal prosecution Tort Law and Strict Liability Strict liability = C can obtain a remedy against a D, who was not necessarily at fault or to blame or that event occurring

SL not usually objectionable where remedy being sought = injunction / other form of D acting in a specific way SL becomes questionable when remedy being sought = damages (unfair?) Instances of SL outside tort law is easier to justify (e.g. CPA 1987) based on the enterprise risk rationale that one should shoulder both benefits and burdens from their enterprise

Insurance C may suffer loss that is covered by an insurance policy - If loss is a physical injury o C is allowed to sue D in tort for compensation + claim from her insurance company the sum payable under insurance policy o Not regarded as a double recovery - If loss takes another form o Cs right to sue D in tort for compensation will not be affected if she has already recovered compensation for loss under insurance policy o But if C has already recovered compensation from insurance company then: If she subsequently sues D she must hand over the damages she wins to her insurance company If she is not interested in suing D her insurer can bring a claim in tort against D in Cs name and keep any damages why? Term of insurance may provide that insurer can do this Public policy demands that loss suffered as a result of tortfeasors conduct should ultimately fall on him; this ensures this happens Helps keeps the costs of insurance down D may be carrying liability insurance (third party insurance) - Officially, the existence of TPI should not affect whether D is held liable to pay damages - E.g. However: Courts very willing to find motorist breached duty he owes nearby drivers / pedestrians to take care not to drive dangerously; that often the liability insurer pays explains the strict attitude - E.g. However: Courts very willing to require motorist compensate government for NHS money spent on Vs care; that often the liability insurer pays explains the strict attitude Paying for Tort Law Tort law is a system that takes money out of the pockets of public and funnels it into hands of specific parties - It is predominantly employers / insurance companies who pay for damage claims - However: general public also pays cost by paying higher prices for goods and services employers charge / for higher insurance premiums - However: general public also pays for courts and lawyers that are needed to keep tort system functioning

Social benefit of having tort system - Vesting people with basic rights gives people more control over their lives - Vesting people with basic rights makes people feel better about themselves - People are better protected in a legal system that includes one of tort Social costs of having a tort system - The risk of being sued encourages people to do more than tort requires of tem to ensure they will not incur the risk, and this overkill response is wasteful - Overkill response becomes more costly when it takes the form of avoiding doing things that are socially beneficial o E.g. Tomlinson v Congleton Borough Council o Congleton BC was in charge of numerous beaches around a lake; there were no swimming signs around the lake, although people tended to ignore them o Council decided to avoid the risk they would turn the beaches into a swampland so no one would swim o General principle: To win a negligence case = act reasonably To avoid being sued at all = may have to go beyond reasonable and take unreasonable steps to minimize risk - Anyone who is continually exposed to risk of being sued needs to hold liability insurance, which gives insurers huge amounts of power to dictate what the insured must/must not do o Represents a loss of autonomy, responsibility and accountability to C Conclusion - Social costs of having a tort system seem to outweigh the benefits - Reforming tort law so as to reduce the social costs associated with its existence and maximize its social benefits = promising option o Cutting tort law down to size and strengthening its application o Rollin back scope of tort law to reduce power of liability insurance companies o Reducing damages awards and relating them to an individuals ability to pay would lessen the need to carry insurance o Simplifying and speeding up procedures would help individuals feel like tort law is something that exists to protect everyone