English tort law

Tort law in England and Wales concerns civil wrongs, as distinguished from criminal wrongs. Some wrongs are the concern of the state, and so the police with aids can enforce the law on the wrongdoers in court - in a criminal case. A tort is not enforced by the police, and it is a civil action taken by one citizen against another, and tried in a court in front of a judge (only rarely, in certain cases of defamation, with a jury). Tort derives from middle English for "injury", from Anglo-French, from Medieval Latin "tortum", from Latin, neuter of "tortus" "twisted", from past participle of "torquēre".

English approach to tort

Following Roman law, the English system has long been based on a closed system of nominate torts, such as trespass, battery and conversion. This is in contrast to the Continental legal systems, which have since adopted more open systems of tortious liability. There are various categories of tort, which lead back to the system of separate causes of action. The tort of negligence is however increasing in importance over other types of tort, providing a wide scope of protection, especially since "Donoghue v. Stevenson". For liability under negligence a duty of care must be established owed to a group of persons of which the victim is one, a nebulous concept into which many other categories are being pulled towards. But as Lord MacMillan said in the case, "the categories of negligence are never closed". [ [1932] AC 563, 561]

Negligence framework

Negligence is a tort which targets a breach of duty by one person to another. One well-known case is "Donoghue v. Stevenson" [ [1932] AC 562] where Mrs. Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland. The snail was not visible, as the bottle of ginger beer in which it was contained was opaque. Neither her friend, who bought it for her, nor the shopkeeper who sold it were aware of its presence. The manufacturer was Mr. Stevenson, whose ginger beer business Mrs. Donoghue sued for her consequent illness. The members of the House of Lords agreed that Mrs. Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan, as above, thought this should be treated as a new product liability case. Lord Atkin argued that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbour. He quoted the Bible in support of his argument, specifically the general principle that "thou shalt love thy neighbour."

"The liability for negligence… is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay… The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." ["Donoghue v. Stevenson" [1932] A.C. 532, 580]

Thus, in the world of law, he created the doctrine that we should not harm our neighbors. The elements of negligence are:
# A duty of care
# Breach of that duty
# Breach causing harm in fact
# The harm must be not too remote a consequence of the breach

Duty of care

The establishment of a duty of care is, like negligence itself, broken up into further elements, a three step test (or in some cases more). "Donoghue v. Stevenson" laid the groundwork for subsequent developments, and from the words of Lord Atkin's speech, he can be seen to refer to firstly, the concept of reasonable foreseeability of harm; secondly, the claimant and the defendant being in a relationship of proximity; and thirdly, and more loosely, it being fair, just and reasonable to impose liability on the defendant for his careless actions. This three step scheme however, did not crystalise until the case of "Caparo Industries Plc v. Dickman". ["Caparo Industries plc v. Dickman" [1990] [http://www.bailii.org/uk/cases/UKHL/1990/2.html Full text from BaiLII.org UKHL 2] ] In this somewhat complicated case, a company called Caparo took over another company, by buying up a majority of its shares. It did this because it sneakily obtained word from a company audit that the target was financially sound. The audit was prepared by a group of accountants (Dickman) and was intended for shareholders, not outsiders. Once Caparo owned the company it found that the finances were in fact pretty shoddy, and so it sued the accountants for being negligent in its audit preparation. The House of Lords found against Caparo, and established the current three-fold test. Although it was "reasonably foreseeable" that outsiders might learn of the carelessly prepared information, it was not the case that Caparo and Dickman were in a relationship of "proximity". This the court used as a term of art (note, this is different from the American use of the word), to say that it "should" not be the case that absolutely anyone hearing something said that was stupid and acted on it can sue. The court was reacting to its concern that to allow a claim here might open the floodgates of litigation. The third element, whether liability would be "fair, just and reasonable" was an extra hurdle added, as a catch all discretionary measure for the judiciary to block further claims.

Breach of duty

Once a duty of care has been established, it must be shown that a duty has been breached. The question the courts ask is whether the behaviour exhibited by the defendant fell below the threshold of a "reasonable man" (the objective test). ["Blyth v. Company Proprietors of the Birmingham Water Works" (1856) 11 Ex Ch 781] In some cases where the defendant was in a special profession, e.g. being a doctor, the court will ask what standard of care a "reasonable doctor" or the like might have done. ["Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118"] Allowance is usually made for the defendants age and a lower standard of a "reasonable child of a certain age" is applied to children. ["Mullin v. Richards" [1998] 1 All ER 920] On the other hand, no allowance is made for other personal circumstances, such as the fact that the defendant was inexperienced in the task he set out to perform. He is expected to perform this task as a reasonably skilled and competent person. ["Nettleship v. Weston" [1971] 3 All ER 581, Wells v. Cooper (1958) 2 All ER 527 ]

Causation

Causation is complex, and is usually discussed in two parts. Simple causation is a question of whether "but for" the action by the defendant harm would have resulted. There has been some deal of discussion over whether a contributory cause is enough.

*"Barnett v. Kensington & Chelsea NHS Trust"
*"McGhee v. National Coal Board"
*"Bolitho v. City and Hackney Health Authority"
*"Fairchild v. Glenhaven Funeral Services Ltd"

Remoteness

After the complexities under the "but for" test have been addressed, the courts may still deny compensation if the harm was a very remote consequence of the initial wrong.

*"Re Polemis and Furness, Withy & Co" [1921] 3 KB 560
*"Wagon Mound (No.1)" [1961] AC 388
*"Hughes v. Lord Advocate" [1963] AC 837

Negligence subsets

Psychiatric injury

*"Wilkinson v Downton"

*"Alcock v. Chief big cock Constable of South Yorkshire Police gay pride brigade"
*"Page v. Smith" [1996] A.C. 155

Pure economic loss

*"Spartan Steel and Alloys Ltd v. Martin & Co. Ltd"

*"Hedley Byrne v. Heller"

Public bodies

*"Anns v. Merton London Borough Council"
*"Home Office v Dorset Yacht"

Negligence defences

Finding a successful defence absolves the defendant from full or partial liability for damages, which makes them valuable commodities in the court. There are three main defences to tortious liability.

"Volenti non fit injuria"

This is Latin for "to the willing, no injury is done". It operates when the claimant either expressly or implicitly consents to the risk of loss or damage. For example, if a regular spectator at an ice hockey match is injured when a player strikes the puck in the ordinary course of play, causing it to fly out of the rink and hit him or her, this is a foreseeable event and regular spectators are assumed to accept that risk of injury when buying a ticket. A slightly more limited defence may arise where the defendant has been given a warning, whether expressly to the plaintiff/claimant or by a public notice, sign or otherwise, that there is a danger of injury. The extent to which defendants can rely on notices to exclude or limit liability varies from country to country. This is an issue of policy as to whether defendants should not only warn of a known danger, but also take active steps to fence the site and take other reasonable precautions to prevent the known danger from befalling those foreseen to be at risk.

Contributory negligence

This is a mitigatory defence, whereby a plaintiff/claimant's award is reduced by the percentage of contribution made by the plaintiff to the loss or damage suffered. Thus, in evaluating a collision between two vehicles, the court must not only make a finding that both drivers were negligent, but it must also apportion the contribution made by each driver as a percentage, e.g. that the blame between the drivers is 20% attributable to the plaintiff/claimant: 80% to the defendant. The court will then quantify the damages for the actual loss or damage sustained, and then reduce the amount paid to the plaintiff/claimant by 20%. Contributory negligence can also function as a full defence, when it is assessed at 100%. [See "Jayes v. IMI Kynoch" [1985] ICR 155 ]

Illegality

"Ex turpi causa non oritur actio" is the illegality defence, the Latin for "no right of action arises from a despicable cause". If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained "but for" the property owner's intervention.

tatutory torts

A statutory tort is like any other, by imposing duties on private or public parties, except that they are created by the legislature, not the courts. The concept of statutory torts is not held throughout all common law countries, however. Courts in both the United States and Canada have rejected the concept that a statutory duty can be the basis of a private cause of action, absent a specific provision in statute authorising such a cause of action. In English law, there liability may arise through specific duties clearly laid out by an Act of Parliament. Obvious examples are product liability and occupiers liability, though these have their roots in common law negligence. They were put into statute to clarify the law. Beyond such torts however, the court may find that, while a statute has said nothing specific, a tortious duty may have arisen. This will be a question of statutory construction and interpretation (see, e.g. "Stovin v. Wise" [1996] AC 923).

Product liability

One example is in consumer protection, with the "Product Liability Directive" in the European Union, where businesses making defective products that harm people must pay for any damage resulting. Liability for defective products is strict in most jurisdictions. The theory of risk spreading provides support for this approach. Since manufacturers are the 'cheapest cost avoiders', because they have a greater chance to seek out problems, it makes sense to give them the incentive to guard against product defects.

Occupiers' Liability

Another example is the Occupiers' Liability Acts [see Occupier's Liability Act 1956 and 1984] in the UK whereby a person, such as a shopowner, who invites others onto land, or has trespassers, owes a minimum duty of care for people's safety. One early case was "Cooke v Midland Great Western Railway of Ireland", [ [1909] AC 229] where Lord MacNaughton felt that children who were hurt whilst looking for berries on a building site, should have some compensation for their unfortunate curiosity. Statutory torts also spread across workplace health and safety laws and health and safety in food produce.

*"Roles v. Nathan"

Nuisance

The tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. A good example of this is in the case of "Jones v Powell" (1629). ["Jones v Powell" (1629) 123 Eng. Rep. 1155] A brewery made stinking vapors waft to neighbors' property, damaging his papers. Because he was a landowner, the neighbor sued in nuisance for this damage. But Whitelocke J, speaking for the Court of the King's Bench, said that because the water supply was contaminated, it was better that the neighbor's documents were risked. He said "it is better that they should be spoiled than that the common wealth stand in need of good liquor." Nowadays, interfering with neighbors' property is not looked upon so kindly. Nuisance deals with all kinds of things that spoil a landowner's enjoyment of his property.

A subset of nuisance is known as the rule in "Rylands v. Fletcher" ["Rylands v. Fletcher" (1866) LR 1 Exch 265] where a dam burst into a coal mine shaft. So a dangerous escape of some hazard, including water, fire, or animals means strict liability in nuisance. This is subject only to a remoteness cap, familiar from negligence when the event is unusual and unpredictable. This was the case where chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's reservoirs. [Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264]

*"Sturges v Bridgman"
*"Miller v. Jackson"

Defamation

Defamation means tarnishing the reputation of someone. It is divided into two parts, slander and libel. Slander is spoken defamation and libel is defaming somebody through print (or broadcasting). Both share the same features. To defame someone, you must (a) make a factual assertion (b) for which you cannot provide evidence of its truth. Defamation does not affect the voicing of opinions, but comes into the same fields as rights to free speech in the European Convention's Article 10.

Intentional torts

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories, including tort(s) against the person, including assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud. Property torts involve any intentional interference with the property rights of the claimant. Those commonly recognized include trespass to land, trespass to chattels, and conversion.

Trespass

A trespass is a direct injury to a person, his property or land, committed directly by the defendant. For example, walking on someone's land or cutting a gate into pieces with a saw. However, this rule did not cater for anything injured indirectly by a person, for example if a farmer sets fire to a field, and someone's home is subsequently damaged. Trespass by the case did, however, provide a legal writ for injury caused indirectly by an action.

Deceit

*"Derry v. Peek"

Economic torts

Economic torts protect people from interference with their trade or business. The area includes the doctrine of restraint of trade and has largely been submerged in the twentieth century by statutory interventions on collective labour law and modern antitrust or competition law. The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon." [p.509 "Markesinis and Deakin's Tort Law" (2003 5th Ed.) OUP)]

Two cases demonstrated economic tort's affinity to competition and labor law. In "Mogul Steamship Co. Ltd." ["Mogul Steamship Co. Ltd. v. McGregor, Gow & Co." (1889) LR 23 QBD 598] the plaintiff argued he had been driven from the Chinese tea market by competitors at a 'shipping conference' that had acted together to underprice his company. But this cartel was ruled lawful and "nothing more [than] a war of competition waged in the interest of their own trade." [per Bowen LJ, (1889) LR 23 QBD 598, 614] Nowadays, this would be considered a criminal cartel. In labor law the most notable case is "Taff Vale Railway v. Amalgamated Society of Railway Servants". ["Taff Vale Railway v. Amalgamated Society of Railway Servants" [1901] AC 426] The House of Lords thought that unions should be liable in tort for helping workers to go on strike for better pay and conditions. But it riled workers so much that it led to the creation of the British Labour Party and the Trade Disputes Act 1906 Further torts used against unions include conspiracy, ["Quinn v. Leatham" [1901] AC 495] interference with a commercial contract ["Torquay Hotels Ltd v. Cousins" [1968] ] or intimidation. ["Rookes v. Barnard" [1964] AC 1129]

Through a recent development in common law, beginning with "Hedley Byrne v Heller" [ [1964] AC 465] in 1964, and further through the Misrepresentations Act 1967, a victim of the tort [Although this area of law clearly overlaps with contract, misrepresentation is a tort as confirmed by Bridge LJ in "Howard Marine and Dredging Co. Ltd. v A Ogden & Sons" [1978] QB 574] of misrepresentation will be compensated for purely economic loss due to the misconception of the terms of the contract.

Competition law

The English doctrine of restraint of trade was the catalyst for much of what is now called "competition laws" (or sometimes "antitrust"). These laws are a way of restraining those who would restrain "free competition" in the market economy, through monopolising production, setting up cartels, imposing unfair trading conditions, prices and so on. The English approach has traditionally been very flexible and liberal in its scope, but draconian when it did deem certain behaviour to be in restraint of trade. Many of these laws around the end of the nineteenth century were focused on the emasculation of trade unionism, until the reforming government of 1906 and the Trade Disputes Act 1906. Aside from the common law, legislation was introduced shortly after the second world war to foot policy on a statutory basis, the Monopolies and Restrictive Practices Act 1948, followed later by the Restrictive Trade Practices Act 1956 and the Monopolies and Mergers Act 1965.

Since 1972 however, the U.K. fell under the cross-border competition law regime of the European Community, which is found primarily in Articles 81 and 82 of the Treaty of the European Community. Companies who form a cartel or collude to disrupt competition (Article 81) or abuse a dominant position on the market, for instance through a monopoly (Article 82) face fines from the public enforcement authorities, and in some cases a cause of action in tort, for the purposes of private enforcement may arise. A huge issue in the E.U. is whether to follow the U.S. approach of private damages actions to prevent anti-competitive conduct. [Richard Whish, Competition Law (2003) 5th Ed., Lexis Nexis, Ch. 10] In other words, the question is what should be seen as a private wrong (as was held in the vertical restraints case of "Courage v. Crehan" [C-453/99 "Courage Ltd v. Crehan" [2002] ICR 457] ) and what should be seen as a public wrong where only public enforcers are competent to impose penalties. In 1998 the United Kingdom brought its legislation up to date, with the Competition Act 1998, followed by the Enterprise Act 2002, a regime mirroring that of the European Union. The domestic enforcers are the Office of Fair Trading and the Competition Commission.

Vicarious liability

Vicarious liability refers to the idea of one person being liable for the harm caused by another, because of some legally relevant relationship. The word "vicarious" derives from the Latin for 'change' or 'alternation' [ [http://www.m-w.com/dictionary/vicarious vicarious - Definition from the Merriam-Webster Online Dictionary] and the old Latin for the doctrine is "respondeat superior". The most prominent example of a relationship generating vicarious liability is that of an employer and an employee (parent and child is another). You can sue an employer for the damage to you by their employee, which was caused 'in the course of employment'. For example, if a shop employee spilled cleaning liquid on the supermarket floor, one could sue the employee who actually spilled the liquid, or sue the employers. In the aforementioned case, the later option is more practical as they are more likely to have more money. The law replies "since your employee harmed the claimant in the course of his employment, you bear responsibility for it, because you have the control to hire and fire him, and reduce the risk of it happening again." There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation.

*"Joel v. Morison" (1834) 6 C&P 501; (1834) 172 E.R. 1338

Remedies

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The main remedy against tortious loss is compensation in 'damages' or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defence against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction. This means a command, for something other than money by the court, such as restraining the continuance or threat of harm. [Miller v. Jackson [1975] ]

For people who have died as a result of another person's tort, the damages that their estate or their families may gain is governed by the Fatal Accidents Act 1976 (replacing the Fatal Accidents Act 1846). Under s.1A the spouse or dependent of a victim may receive £11,800 [see, SI 2007/3489 Damages for Bereavement (Variation of Sums) (England and Wales) Order) Art.2] in bereavement damages.

Injunctions

Usually injunctions will not impose positive obligations on tortfeasors, but some Australian jurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters. [Currie, S., & Cameron, D. (2000), "Your Law", "Nelson Thomson Learning", Melbourne, p. 225]

Theory and reform

Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated and punitive. In "The Aims of the Law of Tort" (1951) [Williams, G. [1951] "The Aims of the Law of Tort", "Current Legal Problems" 137] , Glanville Williams saw four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.

From the late 1950s a group of legally oriented economists and economically oriented lawyers emphasised incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. They are often described as the "law and economics movement". Ronald Coase, one of the movement's principal proponents, submitted, in his article "The Problem of Social Cost" (1960) [ cite journal | author=Coase, R. H. | year=1960 | title=The Problem of Social Cost | journal=The Journal of Law and Economics | volume=3 | pages=1–44 | doi=10.1086/466560 , repreinted in cite book | author=Coase, R. H. | year=1990 | title=The Firm, the Market and the Law | publisher=Chicago University Press | location=Chicago | id=ISBN 0-226-11101-6 | pages="pp"95-156 , [http://www.sfu.ca/~allen/CoaseJLE1960.pdf online version] ] , that the aim of tort should be to reflect as closely as possible liability where transaction costs should be minimised.

Calls for reform of tort law come from diverse standpoints reflecting diverse theories of the objectives of the law. Some calls for reform stress the difficulties encoutered by potential claimants. Because of all people who have accidents, only some can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery". [Atiyah, P. S. (1997) "The Damages Lottery"] Consequently, in New Zealand, the government in the 1960s established a "no-fault" system of state compensation for accidents. Similar proposals have been the subject of Command Papers in the UK and much academic debate.

Tort and criminal law

There is some overlap between crime and tort, since tort, a private action, used to be used more than criminal laws in centuries gone. For example, an assault is both a crime and a tort (a form of trespass to the person). A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of damages to a person injured in a car accident, or the obtaining of injunctive relief to stop a person interfering with their business). Criminal actions on the other hand are pursued not to obtain remedies to assist a person — although often criminal courts do have power to grant such remedies — but to remove their liberty on the state's behalf. That explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts.

ee also

*
*Law

Notes

Further reading

*Simon Deakin, Angus Johnston and Basil Markesinis, "Tort Law" (2003) 5th Ed. Oxford University Press, ISBN 0-19-925711-6
*Mark Lunney, Ken Oliphant, "Tort Law - Texts, Cases" (2003) 2nd Ed. Oxford University Press, ISBN 0-19-926055-9
* Law Made Simple - David Barker and Colin Padfield ISBN 0-7506-5405-8
* Cases, Materials and Text on National, Supranational and International Tort Law ISBN 1-84113-139-3