The Origins and Character of Tortious Liability


The origins and character of tortious liability


After reading this chapter you should be able to:

Understand the basic character of torts

Understand the basic principles of tortious liability

Understand the basic aims of tortious liability

Understand the basic interests protected by the Law of Torts

Understand the relevance of specific mental states in pursuing tort actions

Discriminate between fault liability and no fault liability

Discriminate between joint liability and several liability and understand how and why contributions can be made between different tortfeasors

Understand how human rights legislation impacts on the Law of Torts

1.1 The origins of tort

Tort is a French word meaning ‘wrong’ – so is a general word used to describe civil wrongs

The law of tort, or torts, is part of the English common law which has developed incrementally since Norman times. Academic writers are not agreed whether there is a law of tort or a law of torts. A law of tort implies some general common rules relevant to all parts of the law. A law of torts recognises that there are various separate and distinct aspects but also implies that the separate parts have something in common. The writer of this book inclines to the idea that there is a law of torts, each tort being governed by similar underlying principles. It is a nice subject for a debate but of little practical importance.

Torts based on trespass tend to involve interference, e.g. with rights over land, or property or indeed with their ‘bodily integrity’

Although some modern torts have been created by statute, the law is still generally to be found in common law principles. The origins of torts can be traced back to the fourteenth century when the word ‘trespass’ was given a much wider legal meaning than it has today. It originally referred to ‘any direct and forcible injury to the person, land or property (chattels)’.

Trespass was one of two medieval forms of action, the second being ‘trespass on the case’ or simply ‘case’. Case covered ‘injury which was consequential to a wrong but the wrong was neither forcible nor direct’.

actionable per se
An action for a tort where the claimant does not have to prove that damage occurred only that the tort occurred

The distinction can still be seen in the law of torts today – torts which are actionableper se, i.e. without proof of damage, such as trespass to land and trespass to the person, generally originate from the old form of trespass, while those torts which require proof of damage, for example negligence and nuisance, generally come from case.

The person who brings an action in tort

In the past, the distinction was of crucial importance as using the wrong form of action could result in the claimant being left without any remedy. Today, although there may be cost penalties, the Rules of Court allow for the amendment of pleadings (subject to the provisions of the Limitation Act 1980 which are discussed in Chapter 20). The legal historian will be able to find traces of the old rules in modern law but for practical purposes the distinction is of little relevance. Both Lord Atkin and Lord Denning MR have made this clear. In his judgment in United Australia Ltd v Barclays Bank [1941] AC 1, Lord Atkin said:



‘When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course for the judge is to pass through them undeterred.’



‘These forms of action have served their day. They did at one time form a guide to substantive rights; but they do so no longer. Lord Atkin told us what to do about them.’



Letang v Cooper [1965] 1 QB 232

The claimant decided to sunbathe on a grass area which was also used as a car park. The defendant drove in. He did not see the claimant lying on the grass and ran over her legs. The problem for the claimant was caused by the date on which she tried to commence her action. She was out of time to bring an action for negligence (a descendant of case) where the usual time limit is three years. If she was able to use trespass, then the action could stand as the time limit was six years. It was argued that the old rules should apply, her injury was direct and forcible.

The Court of Appeal held that the old rules no longer apply. Intentional injury will give a claim based in trespass, but unintentional injury gives a claim based in negligence. The claimant was unsuccessful.

Before leaving this introduction, mention should be made of the tort of defamation. Slander has its roots in the old ecclesiastical law. Libel stems from the old prerogative law which regarded certain written statements as prejudicial to the state. Both libel and slander eventually found a home in the common law courts. As will be seen in Chapter 14, the tort of defamation continues to have its own unique characteristics.

1.2 General principles of liability

1.2.1 The character of torts

Anyone who teaches law is certain to be asked ‘What does tort mean?’ If only there was an easy answer! It seems to be generally accepted that the word itself is a surviving relic of Norman French and means simply ‘wrong’. This does not tell us very much. Winfield defines the meaning as follows:


‘Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.’

W V H Rogers, Winfield and Jolowicz on Tort (16th edn, Sweet & Maxwell, 2002)

The definition is helpful in that it shows that there are three elements:

1. a duty fixed by law – as we shall see this does not necessarily, or indeed usually, mean fixed by statute but a duty which the courts have recognised;

2. the duty must be owed generally – as we shall see individual torts have been developed so that a general duty is owed to any person in a position to bring an action based on that tort;

Refers to the compensation awarded by the court in a successful claim

3. the breach of duty must entitle the claimant to general damages.

The nature of the duty varies from tort to tort. For example where negligence is alleged, the duty is to take reasonable care; in the case of trespass to the person the duty is to refrain from infringing a person’s bodily integrity.

The class of persons to whom a duty is owed may be limited. For example in negligence, a duty is owed only to those who ought reasonably have been foreseen as likely to be affected by failure to take reasonable care; in trespass to the person the duty is owed only to those directly affected by the action.

The injury sustained must be of a type recognised by the law. In negligence for example it took many years for the courts to recognise that psychiatric harm was as much an injury as physical damage. In trespass to the person and other torts which are actionable per se it is unnecessary to prove damage, the infringement of the right being regarded as injury enough.

1.2.2 The functions and purposes of torts

The aim of the law of torts is twofold:

The person against whom a claim in tort is made

1. to compensate someone who has suffered a wrong at the hands of the defendant; and

2. to deter persons from acting in such a way that another person’s rights are infringed.


Clearly a person who has suffered injury is entitled to financial compensation which is intended, so far as possible, to put them in the position they would have been in but for the wrongdoing of the defendant. Where the damage is purely to property this may be possible, but real difficulty arises in cases of personal injury. The rules which guide the courts in such matters are discussed in detail in Chapter 20.

The award of damages can also be regarded as ensuring that an injured party receives justice in that loss caused by the tort is compensated. In some cases the ‘victim’ would not agree that justice has been done. How often does the media report a case where a ‘victim’ makes it clear that the money is in reality no compensation for the loss which has occurred? While the finding of liability may go some way to satisfy the injured party’s desire for vengeance, having ‘had their day in court’, it is only rarely that a punitive element of damages is payable.

From the defendant’s point of view, the concept of justice is also debatable. The amount of damages is assessed purely by the effect on the claimant. A defendant who has caused serious personal injury to the particular victim because of some personal characteristic of that victim will find that the award far exceeds the amount which would have been payable to another, less vulnerable, victim.

The law does not compensate a person for all types of damage. We shall see, for example in Chapter 14, that generally there is no duty to respect another’s privacy. A person who publishes something which is true is not liable for defamation no matter how detrimental the publication may be to the ‘victim’.

The law does not always regard a person as having a legal claim. In negligence, for example, a person who suffers psychiatric damage as a result of the defendant having negligently caused harm to someone else, will only be able to bring an action when certain very strict conditions have been complied with (see Chapter 6).


The deterrent effect of torts is debatable. This is illustrated by the decision of certain publishers to go ahead and publish defamatory material in the belief that, if the ‘victim’ brings an action, the profit will outweigh any possible compensation. In such cases if an action is brought damages can include a punitive element, but such a publisher may also calculate that the ‘victim’ is unlikely to bring an action. An action for defamation frequently has the effect of ensuring that the material becomes known to many more people, no legal aid is available and the outcome is unpredictable as in many cases the final decision rests with a jury. None of these are matters that a ‘victim’ is likely to ignore.

Where insurance is required, for example in relation to motor vehicles (Road Traffic Act 1988), the deterrent effect is perhaps more effective. A person who is liable may well find that once the insurance company has paid the compensation, the premium goes up. Defendants may or may not care that their actions have caused injury to someone else, but all are likely to be very concerned about the effect on their pockets!

The deterrent effect is also reinforced in the case of professionals who are subject to strict codes of practice, for example health care professionals, lawyers and accountants. Professional governing bodies usually have powers to prevent future practice where the code is not obeyed thus preventing a wrongdoer from earning a living.

1.2.3 The interests protected by the law of torts

Common law develops incrementally by virtue of the doctrine of precedent but it is possible to classify, in broad terms, the general nature of interests which the law of torts protects:

personal security



economic interests.

Reference should be made to the various chapters for more detail. The following paragraphs simply draw the reader’s attention to the specific torts which may be relevant to the particular interests.

In liability for damage caused by the state of premises the occupier is the person in actual control of the premises when the damage occurs – so there can be dual occupation

Personal security is most obviously protected by the torts of trespass to the person and trespass to land. When negligence is studied it is clear that this tort also has a part to play in ensuring that an individual does not suffer harm by the unreasonable acts or omissions of others. Nuisance helps to protect an occupier of land from activities on neighbouring land which are detrimental to health or comfort. Statutory torts created by the Protection from Harassment Act 1997 and the Consumer Protection Act 1987 also play an important role.

Property is protected by the torts of trespass to land and interference with goods. Nuisance and Rylands v Fletcher [1868] LR 1 Exch 265 also help by providing a remedy for wrongful interference with the use of land or damage caused to land, in both cases caused by some activity or omission on the wrongdoer’s land. Negligence also has a role to play where property is damaged as a result of failure to take reasonable care.

A person’s reputation is protected by the tort of defamation. The equitable remedies available for breach of confidentiality, although not strictly part of tort law, and the growing influence of the European Convention on Human Rights cannot be ignored in this context. These may help to protect privacy by preventing publication of true but detrimental information.

economic loss
Refers to a loss that is purely financial, e.g. loss of profit – in contrast to personal injury or damage to property

Economic loss is an oddity. Damages are calculated to take account of financial loss sustained by the victim of a tort (see generally Chapter 20) but, as will be seen in Chapter 6, there are restrictions on the availability of a claim in negligence for what is described as ‘pure economic loss’. The ‘economic’ torts of deceit, malicious falsehood, passing off and interference with trade (see Chapter 15), may ensure that a business is protected from unfair competition. Economic loss will also be compensated where the law of contract can be used.

1.2.4 The parties to an action in tort

Capacity generally

The usual principle applies to torts as to any other part of the civil law. In order to bring or defend an action, the party concerned must have legal capacity. A minor can neither bring nor defend an action in their own name but must rely on representation by a suitable adult. Similar rules apply to those of unsound mind. Special rules apply to certain other groups, for example corporations and trade unions. Until the twentieth century, married women were also included as a slightly different case but now they are generally treated as any other person!

The state

As the Crown is traditionally regarded as the fount of all justice, it is not surprising that special rules have evolved as to the liability of the state and its officials. In relation to the monarch the old idea that the ‘King can do no wrong’ is maintained and no action can be brought against the sovereign personally, nor in respect of certain prerogative and statutory powers.

Until 1947 the only remedy against the Crown was by way of petition of right asking the monarch for redress of a wrong. This anomaly was dealt with by the Crown Proceedings Act 1947. The present position is that the Crown is usually in the same position as any other legal person and can therefore sue or be sued in relation to torts in much the same way as anyone else.

vicarious liability
Not a tort in itself but a means of imposing liability on somebody who is responsible for the tortfeasor usually an employer

There are some oddities. For example, the doctrine of vicarious liability cannot apply to heads of government departments as all servants of the Crown are fellow employees. The head of department cannot therefore be regarded as employing subordinate officials. In practice this was of little importance as the wrongdoer remained personally liable and the Treasury Solicitor would satisfy any judgment. Theoretically, however, it was possible for the Crown to plead immunity when an allegation of tortious behaviour was made. This has been dealt with by the Crown Proceedings Act 1947 which brought Crown immunity in tort to an end in most circumstances.

Foreign sovereigns and their servants have long enjoyed what is popularly known as ‘diplomatic immunity’ for tortious actions. Such immunity can always be waived but its existence can and does cause problems. By way of example, a person whose vehicle has been damaged by the negligent driving of a chauffeur employed by a foreign embassy will be unable to obtain compensation if the chauffeur can show that the accident occurred in the course of employment by the embassy unless immunity is waived.

The Member States of the European Union may have liability to their citizens where the state has failed to implement EU legislation (Francovich v Italy [1991] ECR I-5357). The European Union is liable for the activities of its institutions or servants by virtue of Article 340 TFEU.


A person does not become legally adult until their eighteenth birthday is reached (Family Law Reform Act 1969 s1). Until that time a minor may only sue or defend an action by a responsible adult known as a ‘litigation friend’. Apart from this procedural requirement a minor has exactly the same rights and duties in torts as an adult. We shall see, however, that certain allowances may be made, particularly in relation to the defences of voluntary assumption of risk and contributory negligence, for a less mature understanding.

The general rule is that minors may be liable for their own tortious activities. The fact of immaturity is relevant in some cases. For example in a case of negligence, the actions of the child will not be judged by the usual standard of the reasonable man but by the standard of a reasonable and prudent child of the same age.

Victims of child tortfeasors might well hope that the minor’s parents would be liable for the child’s wrongdoing. This is not the case unless:

the parent can be shown to have vicarious liability; or

the parent has personally been negligent, for example in Bebee v Sales [1916] 32 TLR 413 by failing to exercise reasonable control over a 15-year old who injured another child’s eye with an airgun given to him by his father. The father had failed to exercise proper control when he did not remove the gun from the boy’s possession after he had smashed a neighbour’s window.

There is no general rule that a child may not sue its parent but a child injured while in the womb is subject to special rules. These are found in the Congenital Disabilities (Civil Liability) Act 1976 which provides

1. the child must be born alive and disabled;

2. the defendant must have potential tort liability to the child even if the mother was not harmed and has no cause of action;

3. the mother herself cannot be liable for any injury to her unborn child.

Married persons

As far as claims by or against third parties are concerned, married people are in the same position as anyone else. Where a claim is made by one spouse against the other, proceedings are not subject to any special rules except that the court has power to stay any proceedings if no substantial benefit is likely to be obtained by either party if the matter continues. This provision, found in the Law Reform (Husband and Wife) Act 1962 s1(2) (a), is designed to ensure that the courts do not become yet another forum in which husband and wife can fight purely personal battles for the sake of it.


A corporation is an artificial person having legal personality by virtue of incorporation. A corporation can sue for any tort which is committed against it save for those where commission of the tort is clearly impossible, for example false imprisonment. Similarly, the corporation is an appropriate defendant, usually by virtue of vicarious liability as the employer of someone who has in fact committed the tort.


several liability
Where there are joint tortfeasors each one can be separately liable for the whole damage – so if one lacks funds to pay compensation the claimant can bring the action against the one that can pay

Partnerships do not have legal personality and cannot therefore sue or be sued. A right of action vests in the partners who sue as individuals. Where a tort has been committed by the firm, the individual partners have joint and several liability to the claimant. The Rules of Court make special provision to ensure that legal actions are not duplicated or unduly prolonged.

It should be noted that a new type of partnership was brought into being by the Limited Liability Partnerships Act 2000. Where a partnership is formed by virtue of the Act, it has its own legal personality and can sue or be sued in the same way as any other corporation.

Persons of unsound mind

A person who is of unsound mind may sue, through the services of a litigation friend, for any tort committed against them. Where such a person has allegedly committed a tort the position is not straightforward.

If a tort requires a particular state of mind, then evidence will be needed that the person had that state of mind.



Morriss v Marsden [1952] 1 All ER 925

While the defendant did not know that he was doing wrong, he attacked and seriously injured the claimant. The evidence showed that he intended to strike the claimant and he was therefore liable.

Where the actions are involuntary, the person is unlikely to be liable.

1.2.5 Tort and mental state

In torts, two mental states are relevant:


Motive is generally unimportant in most torts but in some circumstances acting maliciously is an element of the tort, e.g. malicious falsehood and nuisance



In the criminal law, the general principle is that a person must intend to commit the crime if they are to be found guilty (the element of mens rea). It is very rarely the case that a person must be shown to have intended to commit a tort although where this can be shown, the claimant may find it easier to establish a case.

Having said this, many torts require the defendant to have intended to do the act which amounts to the tort. In trespass to the person, for example, the defendant must have intended to touch the claimant in order to be liable although they need not have intended to commit battery. A trespass to land cannot be committed by a parachutist who is blown on to land by the wind.

In the tort of negligence, the defendant is liable for unintended consequences of an act. Liability rests on the fact that the defendant failed to foresee the potential consequences and thus failed to guard against them. If the consequences are intended, then some other tort may have been committed. By way of example, if a motorist deliberately rams another vehicle, there may be liability for trespass to the person or trespass to goods, but there will be no liability for negligence.


In some rare circumstances, the defendant’s motive may be relevant. An improper motive is usually referred to as malice and its presence can have the effect of rendering what might otherwise be a reasonable action unreasonable and therefore unlawful. Examples of this are found in the tort of malicious falsehood (see Chapter 15) and in nuisance (see Chapter 9

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