The nature of tortious liability
The Nature of Tortious Liability
1.1 General Principles of Tortious Liability
1.1.1 The Character of Tort
1. The word tort comes from the French meaning ‘wrong’.
2. Tort concerns civil wrongs leading to possible compensation.
3. A common definition is: ‘Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages.’ (Winfield)
4. Character is dictated by historical background, so a better definition is: ‘subject to statutory intervention, a tort is a wrong which in former times would have been remediable by one of the actions for trespass (for direct wrongs) or trespass upon the case (for indirect wrongs)’ (Cooke) – so should refer to a law of torts.
5. The standard modern model is as follows: the defendant’s act or omission causes damage to the claimant through the fault of the defendant, and damage is of a type which attracts liability in law.
6. However, there are complications:
a) strict liability torts do not require faults to be proved;
b) the type of damage caused may not give rise to liability (damnum sine injuria);
c) some conduct results in liability even without damage (injuria sine damno).
1.1.2 The Aims of Tort
1. There are two principal objectives in tort: deterrence and compensation.
a) Deterrence operates more on a market than an individual basis – the idea is to reduce the cost of accidents.
b) Compensation – the purpose of damages is to put the victim in the same position as if tort did not occur (reliance loss).
2. A key question is whether the system adequately compensates victims.
3. Points to consider:
only those who can show fault can be compensated;
both Pearson and Woolf report identified delay and costs as major drawbacks;
reductions in value of compensation: pressure is on the claimant to settle – usually for two-third to three-quarters;
no point suing ‘a man of straw’ – exceptions are third party insurance under Road Traffic Acts; vicarious liability; Employer’s Liability (Compulsory Insurance) Act 1969;
the system discourages claims: only one in ten potential personal injury claims are pursued;
the effect of the Woolf reforms on encouraging or deterring claims.
1.1.3 Alternative Methods of Compensation
1. These were considered as early as Royal Commission on Civil Liability and Compensation for Personal Injury (Pearson Commission) 1978.
2. The Commission was the follow-up to the Thalidomide scandal.
3. The Commission did not recommend an end to the tort system in personal injury, but did recommend a partial no-fault system.
4. New Zealand operates such a scheme: benefits up to 80 per cent of earnings; limited lump sum amounts in permanent disability – 1982 reforms found no one in favour of returning to fault system.
5. Public insurance is one alternative – Pearson showed that the cost of obtaining tort compensation is much higher than the cost of administering the Social Security system.
6. Private insurance – too expensive for many people, and not within British culture.
7. Compensation from public schemes, e.g. Criminal Injuries Compensation Scheme, Motor Insurance Bureau, if applicable.
1.1.4 The Interests the Law of Torts Protects
1. It is possible to classify torts according to type of interest.
2. These include the following.
a) Personal Security:
original trespass actions, e.g. battery, etc.;
more recently includes negligence, e.g. medical negligence;
and psychiatric extensions, e.g. nervous shock;
and now there is a developing tort of harassment under the Protection from Harassment Act 1997.
interests in land protected by trespass, nuisance (Rylands v Fletcher (1868));
interests in chattels by trespass, conversion, statute.
an extension of personal security;
protected by defamation, malicious falsehood, etc.
d) Economic loss:
much more controversial and problematic;
is limited because of the difficulty of distinguishing between lawful and unlawful business activities;
economic torts associated with competing activities of trade unions and businesses, e.g. procuring a breach of contract;
the law also recognises an action for economic loss caused by a negligently-made statement;
but not for pure economic loss caused by an action.
1.1.5 Tort and Mental States