An Introduction to Tort

Question 1

The term “tort” is broad with no universally accepted definition, but what is the general definition of this?

Answer 1

• Means twisted or wrong
• Denoting a type of harm or loss
• Caused to one person by another, giving rise to a cause of action (claim)

Question 2

What definition does Winfield provide for a tort?

Answer 2

“Tortious liability arises from the breach of a duty primarily fixed by the law: such duty is towards persons generally and its breach is redressible by an action for unliquidated damages”

Question 3

What definition does Hedley provide for a tort?

Answer 3

‘Where the claimant sues the defendant for a tort, the claimant is complaining of a wrong suffered at the defendant’s hands. The remedy claimed is usually a money payment. So proceedings in tort are different from criminal proceedings: in a criminal court, typically, it is not the victim of the wrong who starts the proceedings, but some official prosecutor. The remedy will also be different.’

Question 4

Based on Hedley and Winfield’s definitions, what can we learn about tort?

Answer 4

In certain circumstances the law (both common and statute) fixes us with certain duties to avoid causing loss to another; and if we do, to make the good damage.

Question 5

How does criminal law link to tort?

Answer 5

Focuses on extent to which the conduct undermines/threatens the values, rights and interest which the state seeks to protect as opposed to the individual. Although, the victim may seek damages in an entirely separate action in tort
[standard of proof differs + being sued in tort but could be acquitted in criminal]

Question 6

How does contract law link with tort?

Answer 6

Focuses on obligations which individuals voluntarily assume by entering into a contractual relationship as opposed to tort which impose obligations upon us [however there can be some degree of overlap in field of pure economic loss]

Question 7

How does restitution link with tort?

Answer 7

Focuses on the defendant’s gain as opposed to the claimant’s loss + rests upon the idea of unjust enrichment [debate of whether restitution is a freestanding law branch as opposed to tort & contractual remedies]

Question 8

How does land law link with tort?

Answer 8

Concerns the rights and obligations of land acquisition, disposal and ownership [can be degree of overlap with property torts of private nuisance and trespass to land]

Question 9

How does human rights link to tort?

Answer 9

A particular set of facts may give rise to potential claims under both tort and HR, although there is an expectation that tort should be interpreted in a manner that is rights compatible.

Question 10

How was tort developed and where are its origins?

Answer 10

• Tort law originated from medieval times, where people used legal procedures (“writs” to bring someone to court depending on the issue
• Negligence became most important time in 20th century [flexible + focusing on duty of care]
• If someone breaks duty and causes harm, victim can get compensation

Question 11

Based on Glanville Williams’ article, what are the different aims of tort law?

Answer 11

• Appeasement
• Justice
• Deterrence
• Compensation

Question 12

Should we talk about tort or torts?

Answer 12

• Some books call it “Tort” whilst others use “Torts” –> leads to debates
• Question: Is there one big rule that says causing harm is wrong unless there’s a good reason? Or is tort law just a collection of different rules for different types of harm?
• Main idea connecting all torts is harming something being wrong unless there’s a good legal reason

Question 13

What remedies can be found in tort?

Answer 13

• When someone harmed, they usually ask for compensation to compensate their loss (but some may be difficult to resolve)
• Figuring out the extent of damages to claim is complicated
• Other solution is injunction, where the courts tell someone to stop doing something or change their actions (in land disputes or defamation cases)

Question 14

Are there other means to compensation? Briefly provide a few. (due to litigation being expensive and difficult - last resort) (part 1)

Answer 14

• Insurance: suing to get money back
• Motor Insurers Bureau: hit by uninsured driver, helps to pay losses
• Social security: Government giving financial help to recover money from person who caused accident

Question 15

Are there other means to compensation? Briefly provide a few. (due to litigation being expensive and difficult - last resort) (part 2)

Answer 15

• Criminal Injuries Compensation Scheme: Government providing compensation fund for victims
• NHS treatment: getting costs back from the person responsible
• Charities

Question 16

What is the role of policy in tort?

Answer 16

• Court decisions don’t match what we expect
• Higher courts don’t just decide individual cases, they set rules/precedents that will affect future cases
• Lord Denning questions: defendant have duty to victim + harm foreseeable + harm too remote
• Case: Nettleship v Weston

Question 17

Is there such a thing as “compensation culture”? (where people blame others for everything that goes wrong)

Answer 17

• Media exaggerated this problem + courts resisted making everyone responsible for every accident
• Case: Tomlinson v Congleton Borough Council (2004) - we would lose personal freedom if we keep blaming
• Legislation to prevent claims: Compensation Act 2006 + Whiplash Injury Regulations 2021

Question 18

Do we need a law of tort at all?

Answer 18

• Some question whether it’s the best system –> can be slow, expensive and inefficient
• Tort cases in higher courts are more important as they set legal rules for future cases
• Example: employers responsible for exposing workers to asbestos etc.