English tort law
Encyclopedia
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law
of England and Wales
. Some wrongs are the concern of the state, and so the police
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.
, 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. But as Lord MacMillan said in the case, "the categories of negligence are never closed".
Negligence is a tort which targets a breach of duty by one person to another. The famous landmark case of Donoghue v Stevenson, in which Mrs Donoghue, the claimant, consumed part of a drink containing a decomposed snail while in a public house 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. Donoghue sued the manufacturer, Mr Stevenson for her consequent illness, using negligence as, not having purchased the drink herself, the little consumer protection legislation available in 1932 was inapplicable.
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, biblical principle that "love thy neighbour."
Thus, in the world of law, he created the doctrine that we should not harm our neighbours. The elements of negligence are:
Today, courts are considerably less cautious but additional hurdles are still imposed upon claimants under certain circumstances. The following criteria must be satisfied:
1. The injury must have been an event caused by the defendant – the defendant must have owed a duty of care to the claimant, but not a unilateral duty covering every eventuality, and it must have been precisely identified what duty was owed and whether the harm could have been foreseen.
2. The claimant must have been involved in the injury (i.e. proximity must be demonstrated).
3. The event must have caused a recognised psychiatric injury (e.g. pathological grief (Vernon v Bosley or post-traumatic stress disorder (Leach v Chief Constable of Gloucestershire).
The courts had been cautious for a number of reasons, including the fear of floodgates (indeterminate liability), potential for fraud (brought on by people exaggerating their claims), problems of proof and diagnosis (including the costs of expert opinion), psychiatric illness may be considered less serious than physical harm, the claimant is often a secondary victim, and, finally, the courts argued that parliament is better suited to dealing with this area.
But recently, it has been recognised that psychiatric injury is, in many cases, more dangerous than physical injury. Claims can arise in a number of circumstances:
Direct Participants
In the case of Dulieu v White [1901] 2 KB 669, the claimant, Mrs Dulieu, was working in a public house. While she was serving, the defendant negligently drove his horse-drawn van into the bar. She suffered shock which resulted in a miscarriage, and she sued the defendant. Mr White was held liable for causing nervous shock resulting in miscarriage, as the claimant reasonable believed herself to be in danger.
Similarly, in Page v Smith [1995] AC 155, it was held that Mr Smith was liable for causing Mr Page psychiatric injury (chronic fatigue syndrome) after a car crash, because Mr Smith could have reasonably foreseen that Mr Page would suffer physical injury for the crash. So liability for causing psychiatric injury depends on the foreseeability of the physical injury, as long as the psychiatric illness is medically recognised.
In Young v Charles Church (Southern LTD)(1997) 39 BMLR 146, the claimant was a "participant" in the event (i.e. a primary victim – Evans & Hitchinson LJJ). He and Mr Cook were raising scaffolding poles in an area that was not secured by the employers; the power lines were not switched off. Mr Cook touched a pole to the electric wiring and suffered a horrific death which caused Mr Young great distress. Even though he never feared for the loss of his own life, the court held that Mr Young was in the area of potential damage, so he was entitled to claim compensation.
Finally, in McLoughlin v Jones and Others [2002] QB 1312, there was an allegation that Mr McLoughlin was a bad landlord, threatening and beating up tenants to get their rent from them in cash. He was charged for a criminal offence and sentenced to prison. He claimed that his solicitors (Jones and Others) had acted without the evidence, especially the witness-statement of a person who knew that Mr McLoughlin was not present when the beatings allegedly took place. It soon became apparent that he was actually an upstanding member of society and he suffered psychiatric injury as a result of the imprisonment and loss of reputation. (Note that solicitors have a pre-existing duty of care towards their clients.)
Secondary Victims
The case of Alcock v Chief Constable of South Yorkshire Police established a Proximities-Control Device consisting of three stages to establish whether a secondary victim can succeed.
1. Foreseeability – there must be a close relationship of love and affection between the secondary victim and the primary victim.
2. Proximity – there must be temporal and spatial proximity between the claimant and the accident
3. How the accident was caused, or proximity of perception.
Case-law where this test applies includes McLoughlin v O'Brian [1983] AC 410, in which the husband and children of the claimant were involved in a car accident that was caused by the negligence of the defendant. The claimant found out about the accident an hour later, and when she got to the hospital two hours later, one child had already died. She saw her husband and children suffering and suffered shock, depression and a change of personality. The court established a spectrum of proximity: a pedestrian should be able to withstand seeing the accidents that occur in everyday life, but a family member of the victims will inevitably suffer greater emotional harm. Nonetheless, simply seeing the aftermath of the accident and not witnessing it is insufficient proximity. Similarly, seeing a video of the accident is insufficient.
Alcock & Others v Chief Constable of South Yorkshire Police (1992) HL was a 'test' case in the aftermath of the Hillsborough disaster, where 95 spectators were crushed to death and 400 injured in a stadium. The event was televised and broadcast on radio. In Alcock, claims for damages for psychiatric illness were brought by fifteen relatives of the victims of the tragedy; some of them had been present at the match—but not in the area where the disaster occurred—and others had seen it on television or heard it on the radio. The Chief Constable of South Yorkshire Police denied that he owed the claimants a duty of care. On the basis of the three principles mentioned above, all claims were ruled out.
are reduced in accordance with the percentage of contribution made by the claimant to the loss or damage suffered. Thus, in, for example, in evaluating a collision between two vehicles, if the wronged driver were not wearing a seatbelt, he would, most likely, be contributorily negligent. The court will then quantify the damages for the actual loss or damage sustained, and then reduce the amount paid to the claimant by 20%. Contributory negligence can also function as a full defence, when it is assessed at 100%, as in Jayes v IMI Kynoch.
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. However, a trespasser may be able to recover damages due to the unsafe state of the premises (see Occupiers' Liability below).
, not the courts, though the concept of statutory torts is not held throughout all common law countries. In English law, 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 tortuous duty may have arisen. This will be a question of statutory interpretation
(e.g. Stovin v Wise [1996] AC 923).
, where businesses making defective products that harm people must pay for any damage resulting. Liability for defective products is strict (see strict liability
) 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.
and 1984
whereby an occupier, such as a shop owner, 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, in which Lord Macnaughton felt that children who were hurt whilst looking for berries on a building site, should have some compensation for their unfortunate curiosity.
For example, liability under the Nuclear Installations Act 1965, the Merchant Shipping Act
1995, or liability imposed on utility (gas and electricity) companies to ensure the safety of their products, all of which are 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.
, 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 recognised include trespass to land
, trespass to chattels
, and conversion
.
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."
Two cases demonstrated economic tort's affinity to competition and labor law. In Mogul Steamship Co. Ltd. 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." Nowadays, this would be considered a criminal cartel. In labor law the most notable case is Taff Vale Railway Co v Amalgamated Society of Railway Servants. 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, interference with a commercial contract or intimidation.
Through a recent development in common law
, beginning with Hedley Byrne v Heller in 1964, and further through the Misrepresentations Act 1967, a victim of the tort of misrepresentation
will be compensated for purely economic loss due to the misconception of the terms
of the contract
.
. 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. In other words, the question is what should be seen as a private wrong (as was held in the vertical restraints
case of Courage Ltd v Crehan) 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 refers to the idea of an employer being liable for torts committed by their employees, generally for policy reasons, and to ensure that victims have a means of recovery. The word "vicarious" derives from the Latin
for 'change' or 'alternation' and the old Latin for the doctrine is respondeat superior
. To establish vicarious liability, the courts must find first that there exists a relationship of employee and employer. The torts of independent contractors generally do not impose vicarious liability on employers; however, Honeywill and Stein Ltd v Larkin Brothers Ltd
demonstrates this principle does not apply where particularly hazardous activities are contracted for, or a non-delegable duty is owed. Secondly, the tort must have been committed 'in the course of employment'; or while an employee is going about the business of their employer. A preferred test of the courts for connecting torts to the course of employment was formulated by John William Salmond
, which states that an employer will be held liable for either a wrongful act they have authorised, or a wrongful and unauthorised mode of an act that was authorised. Where in Limpus v London General Omnibus Company an omnibus driver chose to disobey strict instructions from his employer, to obstruct a rival company, they were still liable, as he was merely engaging in his duties in an unauthorised way. However, in the contrasting case of Beard v London General Omnibus Company, there was no liability where a conductor drove an omnibus negligently, as it was no part of his duties. Under the test, employers were generally not held liable for intentional torts of their employees. Lister v Hesley Hall Ltd established a newer test, stating that employers would be liable for torts which were closely connected to the duties of an employee.
. This means a command, for something other than money by the court, such as restraining the continuance or threat of harm.
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 in bereavement damages.
. The court may impose an injunction on a tortfeasor, such as in Sturges v Bridgman
. This legally obliges the tortfeasor to stop or reduce the activity causing the nuisance and its breach could, potentially, be a criminal offence. Injunctions may be used instead of or as well as the awarding of damages (above).
or exemplary. In The Aims of the Law of Tort (1951), 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), that the aim of tort should be to reflect as closely as possible liability where transaction cost
s 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 encountered 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". 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 Paper
s in the UK and much academic debate.
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.
Duty and breach
Causation
Other
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
. Some wrongs are the concern of the state, and so the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
can enforce the law on the wrongdoers in court – in a criminal case. A tort is not enforced by the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
, and it is a civil action taken by one citizen against another, and tried in a court in front of a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
(only rarely, in certain cases of defamation, with a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
). Tort derives from middle English
Middle English
Middle English is the stage in the history of the English language during the High and Late Middle Ages, or roughly during the four centuries between the late 11th and the late 15th century....
for "injury", from Anglo-French, from Medieval Latin tortum, from Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
, neuter of tortus "twisted", from past participle of torquēre.
English approach to tort
Following Roman lawRoman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, 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
Duty of care in English law
In English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur...
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. But as Lord MacMillan said in the case, "the categories of negligence are never closed".
Negligence
Paisley
Paisley is the largest town in the historic county of Renfrewshire in the west central Lowlands of Scotland and serves as the administrative centre for the Renfrewshire council area...
, Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
. The snail was not visible, as the bottle of ginger beer
Ginger beer
Ginger beer is a carbonated drink that is flavored primarily with ginger and sweetened with sugar or artificial sweeteners.-History:Brewed ginger beer originated in England in the mid-18th century and became popular in Britain, the United States, and Canada, reaching a peak of popularity in the...
in which it was contained was opaque
Opacity (optics)
Opacity is the measure of impenetrability to electromagnetic or other kinds of radiation, especially visible light. In radiative transfer, it describes the absorption and scattering of radiation in a medium, such as a plasma, dielectric, shielding material, glass, etc...
. Neither her friend, who bought it for her, nor the shopkeeper who sold it were aware of its presence. Donoghue sued the manufacturer, Mr Stevenson for her consequent illness, using negligence as, not having purchased the drink herself, the little consumer protection legislation available in 1932 was inapplicable.
The members of the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
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
Bible
The Bible refers to any one of the collections of the primary religious texts of Judaism and Christianity. There is no common version of the Bible, as the individual books , their contents and their order vary among denominations...
in support of his argument, specifically the general, biblical principle that "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."
Thus, in the world of law, he created the doctrine that we should not harm our neighbours. The elements of negligence are:
- A duty of careDuty of care in English lawIn English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur...
(see Donoghue v Stevenson) - Breach of that dutyBreach of duty in English lawIn English tort law, there can be no liability in negligence unless the claimant establishes both that they were owed a duty of care by the defendant, and that there has been a breach of that duty...
(see Nettleship v Weston) - Breach causing harm in factCausation (law)Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is...
(see Smith v Leech Brain & Co.) - The harm must be not too remoteRemotenessRemoteness in English law is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong.In negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was...
a consequence of the breach (see The Wagon Mound (No 2))
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 crystallise until the case of Caparo Industries Plc v Dickman. 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 threefold 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). 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. Allowance is usually made for the defendants age and a lower standard of a "reasonable child of a certain age" is applied to children. 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.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
- Gregg v ScottGregg v ScottGregg v Scott [2005] is an English tort law case, on the issue of loss of a chance, in causation. It affirms the principle of Hotson v East Berkshire Area Health Authority, on a narrow margin of 3 to 2...
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. So long as a type of damage is foreseeable, however, the manner in which it occurred – however remote – is of no concern to the courts.- Scott v ShepherdScott v ShepherdScott v Shepherd 96 ER 525 is an important English tort law case on remoteness and the principle of novus actus interveniens.-Facts:A larrikin tossed a lit firework into a market...
(1773) 96 ER 525 - Re PolemisRe PolemisRe Polemis & Furniss, Withy & Co Ltd [1921] 3 KB 560 is a famous United Kingdom tort case on causation and remoteness. The Court of Appeal held that a defendant can be held liable for all consequences flowing from the wrongful conduct regardless of how unforeseeable.-Facts:The defendant's employees...
and Furness, Withy & Co [1921] 3 KB 560 - Wagon Mound (No.1) [1961] AC 388
- Hughes v Lord AdvocateHughes v Lord AdvocateHughes v Lord Advocate [1963] is a famous Scottish delict case decided by the House of Lords on causation. It is also influential in the English law of tort.-Facts:...
[1963] AC 837
Psychiatric injury
Historically, English courts have been reluctant to allow claims for nervous shock. Early claims involved ladies who suffered what the courts referred to as a "malady of the mind." It was not expected for men to succumb to such problems.Today, courts are considerably less cautious but additional hurdles are still imposed upon claimants under certain circumstances. The following criteria must be satisfied:
1. The injury must have been an event caused by the defendant – the defendant must have owed a duty of care to the claimant, but not a unilateral duty covering every eventuality, and it must have been precisely identified what duty was owed and whether the harm could have been foreseen.
2. The claimant must have been involved in the injury (i.e. proximity must be demonstrated).
3. The event must have caused a recognised psychiatric injury (e.g. pathological grief (Vernon v Bosley or post-traumatic stress disorder (Leach v Chief Constable of Gloucestershire).
The courts had been cautious for a number of reasons, including the fear of floodgates (indeterminate liability), potential for fraud (brought on by people exaggerating their claims), problems of proof and diagnosis (including the costs of expert opinion), psychiatric illness may be considered less serious than physical harm, the claimant is often a secondary victim, and, finally, the courts argued that parliament is better suited to dealing with this area.
But recently, it has been recognised that psychiatric injury is, in many cases, more dangerous than physical injury. Claims can arise in a number of circumstances:
Direct Participants
In the case of Dulieu v White [1901] 2 KB 669, the claimant, Mrs Dulieu, was working in a public house. While she was serving, the defendant negligently drove his horse-drawn van into the bar. She suffered shock which resulted in a miscarriage, and she sued the defendant. Mr White was held liable for causing nervous shock resulting in miscarriage, as the claimant reasonable believed herself to be in danger.
Similarly, in Page v Smith [1995] AC 155, it was held that Mr Smith was liable for causing Mr Page psychiatric injury (chronic fatigue syndrome) after a car crash, because Mr Smith could have reasonably foreseen that Mr Page would suffer physical injury for the crash. So liability for causing psychiatric injury depends on the foreseeability of the physical injury, as long as the psychiatric illness is medically recognised.
In Young v Charles Church (Southern LTD)(1997) 39 BMLR 146, the claimant was a "participant" in the event (i.e. a primary victim – Evans & Hitchinson LJJ). He and Mr Cook were raising scaffolding poles in an area that was not secured by the employers; the power lines were not switched off. Mr Cook touched a pole to the electric wiring and suffered a horrific death which caused Mr Young great distress. Even though he never feared for the loss of his own life, the court held that Mr Young was in the area of potential damage, so he was entitled to claim compensation.
Finally, in McLoughlin v Jones and Others [2002] QB 1312, there was an allegation that Mr McLoughlin was a bad landlord, threatening and beating up tenants to get their rent from them in cash. He was charged for a criminal offence and sentenced to prison. He claimed that his solicitors (Jones and Others) had acted without the evidence, especially the witness-statement of a person who knew that Mr McLoughlin was not present when the beatings allegedly took place. It soon became apparent that he was actually an upstanding member of society and he suffered psychiatric injury as a result of the imprisonment and loss of reputation. (Note that solicitors have a pre-existing duty of care towards their clients.)
Secondary Victims
The case of Alcock v Chief Constable of South Yorkshire Police established a Proximities-Control Device consisting of three stages to establish whether a secondary victim can succeed.
1. Foreseeability – there must be a close relationship of love and affection between the secondary victim and the primary victim.
2. Proximity – there must be temporal and spatial proximity between the claimant and the accident
3. How the accident was caused, or proximity of perception.
Case-law where this test applies includes McLoughlin v O'Brian [1983] AC 410, in which the husband and children of the claimant were involved in a car accident that was caused by the negligence of the defendant. The claimant found out about the accident an hour later, and when she got to the hospital two hours later, one child had already died. She saw her husband and children suffering and suffered shock, depression and a change of personality. The court established a spectrum of proximity: a pedestrian should be able to withstand seeing the accidents that occur in everyday life, but a family member of the victims will inevitably suffer greater emotional harm. Nonetheless, simply seeing the aftermath of the accident and not witnessing it is insufficient proximity. Similarly, seeing a video of the accident is insufficient.
Alcock & Others v Chief Constable of South Yorkshire Police (1992) HL was a 'test' case in the aftermath of the Hillsborough disaster, where 95 spectators were crushed to death and 400 injured in a stadium. The event was televised and broadcast on radio. In Alcock, claims for damages for psychiatric illness were brought by fifteen relatives of the victims of the tragedy; some of them had been present at the match—but not in the area where the disaster occurred—and others had seen it on television or heard it on the radio. The Chief Constable of South Yorkshire Police denied that he owed the claimants a duty of care. On the basis of the three principles mentioned above, all claims were ruled out.
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 claimant's damagesDamages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
are reduced in accordance with the percentage of contribution made by the claimant to the loss or damage suffered. Thus, in, for example, in evaluating a collision between two vehicles, if the wronged driver were not wearing a seatbelt, he would, most likely, be contributorily negligent. The court will then quantify the damages for the actual loss or damage sustained, and then reduce the amount paid to the claimant by 20%. Contributory negligence can also function as a full defence, when it is assessed at 100%, as in Jayes v IMI Kynoch.
Illegality
Ex turpi causa non oritur actio is the illegality defence, the LatinLatin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
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. However, a trespasser may be able to recover damages due to the unsafe state of the premises (see Occupiers' Liability below).
Statutory torts
A statutory tort is like any other, by imposing duties on private or public parties, except that they are created by ParliamentParliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
, not the courts, though the concept of statutory torts is not held throughout all common law countries. In English law, liability may arise through specific duties clearly laid out by an Act of Parliament. Obvious examples are Product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...
and Occupiers' Liability
Occupiers' liability (English law)
Occupiers' liability is a field of tort law, codified in statute, which concerns the duty of care that those who occupy real property owe to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises...
. Though these have their roots in common law negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
, they were put into statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
to clarify the law. Beyond such torts, however, the court may find that, while a statute has said nothing specific, a tortuous duty may have arisen. This will be a question of statutory interpretation
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
(e.g. Stovin v Wise [1996] AC 923).
Product liability
In consumer protection, with the Product Liability Directive in the European UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, where businesses making defective products that harm people must pay for any damage resulting. Liability for defective products is strict (see strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
) 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
Occupiers' Liability is another example. Governed by the Occupier's Liability Acts, 1956Occupiers' Liability Act 1957
The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted the Royal Assent on 6 June 1957,...
and 1984
Occupiers' Liability Act 1984
The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the...
whereby an occupier, such as a shop owner, 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, in which Lord Macnaughton felt that children who were hurt whilst looking for berries on a building site, should have some compensation for their unfortunate curiosity.
-
- Roles v Nathan
- Tomlinson v Congleton Borough CouncilTomlinson v Congleton Borough CouncilTomlinson v Congleton Borough Council [2003] is a 2003 court case in England from the House of Lords regarding the torts of negligence and occupiers' liability ....
Other statutory torts
Other statutory torts can be found in regulation concerning food safety, health and safety and environmental law.For example, liability under the Nuclear Installations Act 1965, the Merchant Shipping Act
Merchant Shipping Act
Merchant Shipping Act is a stock short title used in the United Kingdom for legislation relating to merchant shipping.-List:*The Merchant Shipping Act 1786*The Merchant Shipping Act 1844...
1995, or liability imposed on utility (gas and electricity) companies to ensure the safety of their products, all of which are strict liability.
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). 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.Rylands v Fletcher
A subset of nuisance is known as the rule in Rylands v Fletcher where a dam burst into a coal mine shaft. So a dangerous escape of some hazard, including water, fire, or animals means strict liabilityStrict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
in nuisance. This is subject only to a remoteness cap, familiar from negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
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.
- Sturges v BridgmanSturges v BridgmanSturges v Bridgman LR 11 Ch D 852 is a landmark case in nuisance. It decides that what constitutes reasonable use of one's property depends on the character of the locality...
- 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 assaultAssault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
, battery
Battery (tort)
At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
, false imprisonment
False imprisonment
False imprisonment is a restraint of a person in a bounded area without justification or consent. False imprisonment is a common-law felony and a tort. It applies to private as well as governmental detention...
, intentional infliction of emotional distress
Intentional infliction of emotional distress
Intentional infliction of emotional distress is a tort claim of recent origin for intentional conduct that results in extreme emotional distress. Some courts and commentators have substituted mental for emotional, but the tort is the same...
, and fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
. Property torts involve any intentional interference with the property rights of the claimant. Those commonly recognised include trespass to land
Trespass to land
Trespass to land is a common law tort that is committed when an individual or the object of an individual intentionally enters the land of another without a lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done...
, trespass to chattels
Trespass to chattels
Trespass to chattels is a tort whereby the infringing party has intentionally interfered with another person's lawful possession of a chattel...
, and conversion
Conversion (law)
Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another. It is a tort of strict liability...
.
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.Economic torts
Restraint of trade
Restraint of trade is a common law doctrine relating to the enforceability of contractual restrictions on freedom to conduct business. In an old leading case of Mitchell v Reynolds Lord Smith LC said,...
and has largely been submerged in the twentieth century by statutory interventions on collective labour law
Labour law
Labour law is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees...
and modern antitrust
Antitrust
The United States antitrust law is a body of laws that prohibits anti-competitive behavior and unfair business practices. Antitrust laws are intended to encourage competition in the marketplace. These competition laws make illegal certain practices deemed to hurt businesses or consumers or both,...
or competition law
Competition law
Competition law, known in the United States as antitrust law, is law that promotes or maintains market competition by regulating anti-competitive conduct by companies....
. The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon."
Two cases demonstrated economic tort's affinity to competition and labor law. In Mogul Steamship Co. Ltd. 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
Cartel
A cartel is a formal agreement among competing firms. It is a formal organization of producers and manufacturers that agree to fix prices, marketing, and production. Cartels usually occur in an oligopolistic industry, where there is a small number of sellers and usually involve homogeneous products...
was ruled lawful and "nothing more [than] a war of competition waged in the interest of their own trade." Nowadays, this would be considered a criminal cartel. In labor law the most notable case is Taff Vale Railway Co v Amalgamated Society of Railway Servants. 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
Trade Disputes Act 1906
The Trade Disputes Act 1906 was an Act of the Parliament of the United Kingdom passed under the Liberal government of Sir Henry Campbell-Bannerman...
. Further torts used against unions include conspiracy, interference with a commercial contract or intimidation.
Through a recent development in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, beginning with Hedley Byrne v Heller in 1964, and further through the Misrepresentations Act 1967, a victim of the tort of misrepresentation
Misrepresentation
Misrepresentation is a contract law concept. It means a false statement of fact made by one party to another party, which has the effect of inducing that party into the contract. For example, under certain circumstances, false statements or promises made by a seller of goods regarding the quality...
will be compensated for purely economic loss due to the misconception of the terms
Contractual term
A contractual term is "Any provision forming part of a contract" Each term gives rise to a contractual obligation, breach of which can give rise to litigation. Not all terms are stated expressly and some terms carry less legal gravity as they are peripheral to the objectives of the...
of the contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
.
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 1906Trade Disputes Act 1906
The Trade Disputes Act 1906 was an Act of the Parliament of the United Kingdom passed under the Liberal government of Sir Henry Campbell-Bannerman...
. 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
Article 81
Article 101 of the Treaty on the Functioning of the European Union prohibits cartels and other agreements that could disrupt free competition in the European Economic Area's common market. Article 101 reads,1...
) or abuse a dominant position on the market, for instance through a monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
(Article 82
Article 82
Article 102 of the Treaty on the Functioning of the European Union is aimed at preventing undertakings who hold a dominant position in a market from abusing that position. Its core role is the regulation of monopolies, which restrict competition in private industry and produce worse outcomes for...
) 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. In other words, the question is what should be seen as a private wrong (as was held in the vertical restraints
Vertical restraints
Vertical restraints are competition restrictions in agreements between firms or individuals at different levels of the production and distribution process. Vertical restraints are to be distinguished from so-called “horizontal restraints,” which are found in agreements between horizontal competitors...
case of Courage Ltd v Crehan) 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
Competition Act 1998
The Competition Act 1998 is the current major source of competition policy in the UK along with Enterprise Act 2002. The act provides an updated framework for identifying and dealing with restrictive business practices and abuse of a dominant market position....
, followed by the Enterprise Act 2002, a regime mirroring that of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
. The domestic enforcers are the Office of Fair Trading
Office of Fair Trading
The Office of Fair Trading is a not-for-profit and non-ministerial government department of the United Kingdom, established by the Fair Trading Act 1973, which enforces both consumer protection and competition law, acting as the UK's economic regulator...
and the Competition Commission
Competition Commission
The Competition Commission is a non-departmental public body responsible for investigating mergers, markets and other enquiries related to regulated industries under competition law in the United Kingdom...
.
Vicarious liability
| "If a slave man or woman damages any piece of someone else's property, then provided the person who suffers the loss was not himself partly to blame Contributory negligence Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff/claimant has, through his own negligence, contributed to the harm he suffered... because of inexperience or careless conduct, the slave's owner must either make good the damage in full, or hand over the actual offender." |
| Plato Plato Plato , was a Classical Greek philosopher, mathematician, student of Socrates, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. Along with his mentor, Socrates, and his student, Aristotle, Plato helped to lay the... , The Laws, Book 11, §25, Damage by slaves. |
Vicarious liability refers to the idea of an employer being liable for torts committed by their employees, generally for policy reasons, and to ensure that victims have a means of recovery. The word "vicarious" derives from the Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for 'change' or 'alternation' and the old Latin for the doctrine is respondeat superior
Respondeat superior
Respondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment...
. To establish vicarious liability, the courts must find first that there exists a relationship of employee and employer. The torts of independent contractors generally do not impose vicarious liability on employers; however, Honeywill and Stein Ltd v Larkin Brothers Ltd
Honeywill and Stein Ltd v Larkin Brothers Ltd
Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191 is an English tort law case, establishing that employers may be vicariously liable for damage done by their independent contractors, where they carry out 'extra-hazardous' activities. Generally, employers are only vicariously liable for...
demonstrates this principle does not apply where particularly hazardous activities are contracted for, or a non-delegable duty is owed. Secondly, the tort must have been committed 'in the course of employment'; or while an employee is going about the business of their employer. A preferred test of the courts for connecting torts to the course of employment was formulated by John William Salmond
John William Salmond
Sir John William Salmond, KC was a legal scholar, public servant and judge in New Zealand.-Biography:Salmond was born in North Shields, Northumberland, England, in 1862, the eldest son of William Salmond , a Presbyterian minister and professor...
, which states that an employer will be held liable for either a wrongful act they have authorised, or a wrongful and unauthorised mode of an act that was authorised. Where in Limpus v London General Omnibus Company an omnibus driver chose to disobey strict instructions from his employer, to obstruct a rival company, they were still liable, as he was merely engaging in his duties in an unauthorised way. However, in the contrasting case of Beard v London General Omnibus Company, there was no liability where a conductor drove an omnibus negligently, as it was no part of his duties. Under the test, employers were generally not held liable for intentional torts of their employees. Lister v Hesley Hall Ltd established a newer test, stating that employers would be liable for torts which were closely connected to the duties of an employee.
Damages
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 injunctionInjunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
. This means a command, for something other than money by the court, such as restraining the continuance or threat of harm.
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
Fatal Accidents Act 1976
The Fatal Accidents Act 1976 is an Act of Parliament of the Parliament of the United Kingdom, that allows relatives of people killed by the wrongdoing of others to recover damages....
(replacing the Fatal Accidents Act 1846). Under s.1A the spouse or dependent of a victim may receive £11,800 in bereavement damages.
Injunctions
As a remedy to tort, injunctions are most commonly used in cases of NuisanceNuisance
Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public or private. A public nuisance was defined by English scholar Sir J. F...
. The court may impose an injunction on a tortfeasor, such as in Sturges v Bridgman
Sturges v Bridgman
Sturges v Bridgman LR 11 Ch D 852 is a landmark case in nuisance. It decides that what constitutes reasonable use of one's property depends on the character of the locality...
. This legally obliges the tortfeasor to stop or reduce the activity causing the nuisance and its breach could, potentially, be a criminal offence. Injunctions may be used instead of or as well as the awarding of damages (above).
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 punitivePunitive damages
Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...
or exemplary. In The Aims of the Law of Tort (1951), 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
Risk
Risk is the potential that a chosen action or activity will lead to a loss . The notion implies that a choice having an influence on the outcome exists . Potential losses themselves may also be called "risks"...
. They are often described as the law and economics
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...
movement. Ronald Coase
Ronald Coase
Ronald Harry Coase is a British-born, American-based economist and the Clifton R. Musser Professor Emeritus of Economics at the University of Chicago Law School. After studying with the University of London External Programme in 1927–29, Coase entered the London School of Economics, where he took...
, one of the movement's principal proponents, submitted, in his article The Problem of Social Cost (1960), that the aim of tort should be to reflect as closely as possible liability where transaction cost
Transaction cost
In economics and related disciplines, a transaction cost is a cost incurred in making an economic exchange . For example, most people, when buying or selling a stock, must pay a commission to their broker; that commission is a transaction cost of doing the stock deal...
s 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 encountered 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". Consequently, in New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, the government in the 1960s established a "no-fault" system of state compensation for accidents. Similar proposals have been the subject of Command Paper
Command paper
A command paper is a document issued by the British government and presented to Parliament. White papers, green papers, treaties, reports from Royal Commissions and various government bodies can all be released as command papers, so-called because they are presented to Parliament formally 'By Her...
s 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 damagesDamages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory 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
Incarceration
Incarceration is the detention of a person in prison, typically as punishment for a crime .People are most commonly incarcerated upon suspicion or conviction of committing a crime, and different jurisdictions have differing laws governing the function of incarceration within a larger system of...
is usually available as a penalty for serious crimes, but not usually for torts.
See also
- LawLawLaw is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
- JurisprudenceJurisprudenceJurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
Duty and breach
- Duty of care in English lawDuty of care in English lawIn English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur...
- Standard of care in English law
- Breach of duty in English lawBreach of duty in English lawIn English tort law, there can be no liability in negligence unless the claimant establishes both that they were owed a duty of care by the defendant, and that there has been a breach of that duty...
- Bolam TestBolam TestBolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals : the Bolam test...
Causation
- Causation in English lawCausation in English lawCausation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law....
- Breaking the chainBreaking the chainBreaking the chain refers in English law to the idea that causal connections are deemed to finish...
- Acts of the claimantActs of the claimantIn the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.-The principles:...
- Remoteness
- Loss of chance in English lawLoss of chance in English lawLoss of chance in English law refers to a particular problem of causation, which arises in tort and contract. The law is invited to assess hypothetical outcomes, either affecting the claimant or a third party, where the defendant's breach of contract or of the duty of care for the purposes of...
- Loss of right in English lawLoss of right in English lawIn the English law of tort, loss of right is a new heading of potential liability arising as a matter of policy to counteract limitations perceived in the more traditional rules of causation.-References:...
Other
- Res ipsa loquiturRes ipsa loquiturIn the common law of negligence, the doctrine of res ipsa loquitur states that the elements of duty of care and breach can be sometimes inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved...
- Vicarious liability in English lawVicarious liability in English lawVicarious liability in English law is a doctrine of English tort law that imposes strict liability on employers for the wrongdoings of their employees. Generally, an employer will be held liable for any tort committed while an employee is conducting their duties...
- Occupiers' liability (English law)Occupiers' liability (English law)Occupiers' liability is a field of tort law, codified in statute, which concerns the duty of care that those who occupy real property owe to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises...
- Rylands v FletcherRylands v FletcherRylands v Fletcher [1868] was a decision by the House of Lords which established a new area of English tort law. Rylands employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris,...