Key Ideas in Tort Law (Peter Cane) (Z-Library)

KEY IDEAS IN TORT LAW
This book offers nine key ideas about tort law that will help the reader
to understand its various social functions and evaluate its effectiveness
in performing those functions. The book focuses, in particular, on how
tort law can guide people’s behaviour, and the political and social envi-
ronments within which it operates. It also provides the reader with a
wealth of detail about the ideas and values that underlie tort ‘doctrine’—
tort law’s rules and principles, and the way those rules and principles
operate in practice. The book is an accessible introduction to tort law
that will provide students, scholars and practitioners alike with a fresh
and engaging view of the subject.
Key Ideas in Law: Volume 2

Key Ideas in Law
Series Editor: Nicholas J McBride
Hart Publishing’s series Key Ideas in Law offers short, stimulating introductions
to legal subjects, providing an opportunity to step back from the detail of the law
to consider its broader intellectual foundations and ideas, and how these work
in practice.
Written by leading legal scholars with great expertise and depth of knowledge,
these books offer an unparalleled combination of accessibility, concision, intel-
lectual breadth and originality in legal writing.
Each volume will appeal to students seeking a concise introduction to a
subject, stimulating wider reading for a course or deeper understanding for an
exam, as well as to scholars and practitioners for the fresh perspectives and new
ideas they provide.
Recent titles in this series:

Key Ideas in Contract Law
Nichlas J McBride
Key Ideas in Tort Law
Peter Cane
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Key Ideas in Tort Law
Peter Cane
OXFORD AND PORTLAND, OREGON

2017
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN: PB: 978-1-50990-942-1
ePDF: 978-1-50990-944-5
ePub: 978-1-50990-943-8
Library of Congress Cataloging-in-Publication Data
Names: Cane, Peter, 1950- author.
Title: Key ideas in tort law / Peter Cane.
Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2017. |
Series: Key ideas in law ; vol. 2 | Includes bibliographical references and index.
Identifiers: LCCN 2017029129 (print) | LCCN 2017030103 (ebook) |
ISBN 9781509909438 (Epub) | ISBN 9781509909421 (pbk. : alk. paper)
Subjects: LCSH: Torts—England. | Torts.
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For Jane,
who has taught me much of what I know about tort law
vi
CONTENTS
1. Nine Key Ideas��1

2. Tort Law��5
3. Torts��13
4. Torts Unpacked��21
5. Torts Repackaged��53
6. Wrongs��73
7. Out and About with Tort Law��83
8. Politics��101
9. Uses��111
10. The Political Economy of Compensation Schemes��121
11. The Future of Tort Law��129
Bibliography��133
Table of Cases��135
viii
1
Nine Key Ideas
This book is about tort law—English tort law, to be more precise. Laws
come in ‘legal systems’, and legal systems are traditionally associated
with political communities. For instance, Scotland has (and has always
had) its own legal system, as do the USA, Australia, China and so on.
Laws differ to a greater or lesser extent from one system to another.
For instance, US tort law is significantly different in many ways from
English tort law, which is very different from Chinese tort law, reflecting
the fact that the USA, England and China are different political commu-
nities and have different cultures. We might say that this book is about
‘one of many tort laws’.
It is addressed primarily to readers who know something about law
in general, and tort law in particular, but who find what they do know
puzzling, or simply want to know more. The book presents nine ‘key
ideas’ about tort law:
KI 1 Tort law is law.
KI 2 Tort law is the law of torts.
KI 3 Each tort has two main elements: (1) conduct that is classified by tort
law as wrongful and (2) one or more interests with which that c onduct
has interfered in ways specified by tort law.
KI 4 Torts are only one species of legal wrongs.
KI 5 Tort law is rarely enforced.
KI 6 Tort law is political.
KI 7 Tort law ‘has its uses’.
KI 8 Tort law is not ‘the only game in town’.
KI 9 Tort law is here to stay—live with it!
2 Nine Key Ideas
I expect that you will find at least some of these ideas paradoxical, if not
downright weird. I hope that this will spark your interest in reading fur-
ther because each of these ideas hints at important truths about tort law.
They will not all receive the same amount of development, if only because
some of them raise profoundly complex and difficult issues that cannot
be fully explored in a book such as this. The overall aim is to provide
background to what is sometimes called ‘legal doctrine’ and to breathe
life into the sometimes rather bloodless words on the pages of tort books.
It is worth reflecting for a minute on this word ‘doctrine’, which might
strike you as a rather odd one to use. Surely the contents of tort books are
not to be compared to the contents of sacred texts such as the Christian
Bible or the Muslim Koran? In fact, however, law and religion share at
least one basic characteristic: both are based on authority. Just as sacred
texts are invested with the authority of some holy person or supernatural
God, so legal texts are invested with the authority of the legal officials and
institutions that make them—notably, legislatures and courts. Devout
Christians and Muslims invest their sacred texts with the authority of
God and treat the contents as ‘God’s word’. In a somewhat similar way,
‘law-abiding’ people, who ‘take law seriously’, treat what its makers have
said—‘the law’—as authoritative. Law, we might say, requires ‘a leap of
faith’ (Gardner 2012a).* Legal officials who implement and enforce the
law must take it seriously in this way, at least when they are performing
their official functions. Whatever they may actually think about the law,
if law is to operate as it is meant to, they must behave as if they were true
believers. However, law students and legal scholars as such do not have
official responsibilities of this sort, and they are free (and may be thought
to have an obligation) to stand back from the law and treat it not (only)
as an authoritative regime of rules but (also) as an object of dispassion-
ate study in much the same way as historians and sociologists of religion
study the beliefs and behaviour of Christians, Muslims and so on.
The key ideas presented in this book could be summed up in One
Really Big Idea (the ORBI) that (tort) law is an authority-based
phenomenon that can be, and is best, understood both ‘from the inside’
as an a uthoritative source of guidance about how to behave and also ‘from
the outside’, taking into account tort law’s character as law, the political
and social environments in which tort law operates, tort law’s uses, and its
* Throughout this book, full references to books and articles referenced in the text can
be found by consulting the Bibliography at the back of the book.
Nine Key Ideas 3
competitors. From this ‘external’ perspective, authoritative legal d octrine

is only one aspect of tort law’s social nature. It is law’s authority that ena-
bles it to perform the social functions we can use it fulfil. Understanding
the doctrine is important, but so is appreciating the environments and
contexts in which the doctrine is embedded and in which it comes to
life off the page. Understanding (tort) law in all its doctrinal and social
richness and diversity teaches us something about the ‘human condition’,
about what it means to be human. The hope is that this book will encour-
age readers to begin that exciting, life-long task of discovery.
4
2
Tort Law
KI 1: Tort law is law
How, you will immediately protest, can such a tautologous banality

teach us anything about tort law, let alone about ‘the human condition’?
A simple, but adequate, answer is that philosophers and lawyers have
argued for millennia—and still argue vigorously today—about what law is.
Law is such a complex and sprawling social phenomenon that providing
a convincing account of its nature is a very tall order indeed; and various
different accounts compete with one another for acceptance. Since tort
law is (by definition) an aspect of the larger body of ‘the law’, it is use-
ful to begin by focusing our attention on the whole rather than on the
particular part.
Law, in the sense we are thinking about it in this book, is a product
of human social life and interaction. It is, we might say, a ‘human social
practice’ and an aspect of a society’s ‘culture’. We do not know when, in
the course of human history, this social practice first appeared; but we
can be confident that the human species has existed for much longer
than what we are calling ‘law’. It has been speculated that law appears
only when human social groups reach a certain size, and their activities a
certain level of complexity.
Law is a social practice of a particular sort that we might call ‘norma-
tive’. At its core, what this means is that law is about how human beings
living in societies should behave towards one another—what they may,
ought and ought not to do; what is permitted, required and prohibited
in our dealings with one another. Besides law, another very important
normative, social practice is morality. Like law, the nature of morality has
been a subject of intense debate for thousands of years, as has the nature
of the relationship between law and morality. Therefore, what I say here
on these (as on many other) topics should be treated as a point of view,
6 Tort Law
not ‘the truth’ in any absolute or unquestionable sense. As a first thought,

you might suppose that law and morality are obviously very different
things. In fact, it turns out to be quite difficult to distinguish one from
the other.
Law is a social practice in at least two distinct senses: first, it is made by
humans; and secondly, it is an aspect of social life. As for the first, many
people think that morality is not ‘made’ by humans. Some believe that it
is made ‘by God’, while others believe that ‘true morality’ is not made by
anyone and, like the natural world, exists independently of human activity.
A good reason to take one or the other of these two views is that one of
the uses of morality in our lives is to supply a set of ‘norms’ to which
individuals are personally committed, and which they can use as a bench-
mark against which to assess the validity and legitimacy of demands
made on them by other individuals and by society as a whole. Morality,
if you like, provides individuals with a shield against what they consider
to be unreasonable external pressure to behave in certain ways and not
others. It is, at least, comforting to think that such ‘personal morality’
consists not merely of one’s own, perhaps idiosyncratic, views about what
one may do, and ought or ought not to do, but that they are, in some
sense, valid and binding for everyone. After all, unless you think that the
norms you personally subscribe to are objectively correct in some sense,
what right do you have to complain when other people demand that you
act inconsistently with one of those norms or, conversely, to expect others
to comply with them?
For present purposes, it is not necessary to answer this question because
all we need to say to distinguish morality from law is that personal moral-
ity may be used as an ultimate standard against which to assess and judge
the acceptability of law. Put differently, personal morality provides indi-
viduals with norms that they believe they themselves should conform
to and, more importantly, that everyone else as well should conform
to, regardless of what the law says. If you thought that you alone were
required to conform to a particular norm, you might not think of that
norm as ‘moral’.
The second sense in which law is a social practice is that it is an aspect
of social life. In this sense, morality, too, is a social practice. Philoso-
phers sometimes say that morality tells us ‘what we owe to each other’
(Scanlon 1998). We may distinguish between personal morality, in the
sense explained in the previous paragraph, and ‘social morality’. One way
of thinking about social morality is that it is ‘made’ by society; but it is
Tort Law 7
probably more helpful to understand it more vaguely as reflecting some

sort of ‘moral consensus amongst right-thinking people’. So, for instance,
we may say that ‘community morality’ in England condemns the death
penalty as a criminal punishment, but that community morality in the
United States is seriously polarised on this issue. Social morality is not so
much about ‘what we owe to each other’ but rather ‘what individuals owe
to society’. Like personal morality, morality in this social sense can provide
a benchmark against which to test the validity and legitimacy of the law.
In that guise, morality has two main uses. First, it can be used by the
powerful in society—the ‘establishment’, the ‘government’—to support
the validity and legitimacy of legal demands made upon its members in
the name of ‘society’. Second, by contrast, it may be used to resist legal
demands made in society’s name on the ground that in making those
demands, the law (and those who support it) are in conflict with com-
munity morality.
It should be clear from this that social morality and personal morality
may be in conflict: personal morality may be used to assess and criticise
social morality as much as to assess and criticise law. We might say that
personal and social morality play different roles in people’s lives: personal
morality can be used to protect individuals’ ‘personal identities’ while
social morality can be deployed to protect their ‘social identities’.
So far, we have not made much progress in distinguishing between law
and morality. Some people think that unlike law, morality is not ‘made’;
but not everyone agrees. Law, personal morality and social morality are
all normative social phenomena in the sense that they are concerned pri-
marily with the ways we may, should or should not interact with other
individuals, and with social groups and our society as a whole. However,
one respect in which law does differ quite clearly from morality (whether
personal or social) is that law is more ‘institutionalised’ than morality;
and this difference has very significant practical consequences. Law is
made by legislatures (‘Parliament’) and courts; it is implemented by
officials and agencies of the executive branch of government; observance
of the law is monitored by various officials and bodies with ‘policing’
responsibilities; and it is applied and enforced by tribunals and courts.
Legislatures, executives, police, courts and tribunals, bailiffs and sheriffs,
are the archetypal legal institutions. This is not to say that there are no
‘moral institutions’. For instance, morality that is based on an organised
religion may well be made, implemented, policed, applied and enforced
(in part, anyway) by religious officials and bodies—religious ‘authorities’.
8 Tort Law
Also, parents, carers and guardians may function as moral officials in

dealing with those under their control or with whose well-being they
are charged. In general, however, such institutions play little or no part
in the moral lives of autonomous adults. For most people, most of the
time, there are no moral legislatures, moral police or moral courts.
For instance, to say that someone is ‘acting like moral police’ is typically a
form of criticism, not approval.
Because law is underpinned and supported by an elaborate institu-
tional framework it can be used for purposes that morality is not able
to promote as well, or at all. Because morality is typically not the prod-
uct of deliberate human activity but emerges, develops and changes
gradually and organically, its requirements tend to be too abstract and
general to provide detailed guidance about right and good behaviour.
For instance, a common—indeed, a probably universal—moral prin-
ciple prohibits harming other people by behaving unsafely. Exceeding
the speed limit when driving can be unsafe and risks harm to others as
well as oneself. Therefore, the general moral injunction against causing
harm by unsafe conduct applies to creating risks of harm by speeding.
But what amounts to speeding? Most people’s morality would probably
not provide a s pecific answer to this question. Rather, we look to the law
for the answer—say 30 mph here, 40 mph there and 50 mph somewhere
else. These are speeds that society, through its authoritative law-makers,
have declared to be generally safe in the various locations to which they
apply. Provided the law’s answers to such questions are consistent with
the general moral principle they relate to, they become (as it were) part
of morality. Law can supplement morality in this way because it has law-
making institutions that can generate answers to moral questions in a
way that morality cannot do (or, at least, not so efficiently and effec-
tively). Morality, we might say, ‘depends on law’ (Honoré 1993). From
this perspective, law is morality made determinate.
Take the example of taxation. Most peoples’ moral compass points
them in the direction of supporting social life by paying taxes; and it may
even identify general principles such as: ‘from each according to their
means’—the basic idea underlying the concept of ‘progressive taxation’.
But morality is unlikely to tell anyone how much to pay. It is the law
that can and does do that. This example also suggests that legal supple-
ments to morality may become so grafted onto the host that a person
might feel able to criticise tax law on moral grounds for requiring them
to pay too much. Putting the point generally, by virtue of its complex
Tort Law 9
institutionalisation, law can give us answers to ‘moral’ questions that

morality, by itself, cannot generate. An important constraint on law’s
ability to do this is that the answers it provides must be consistent with
the rest of a person’s morality if that person is to feel a legally-derived
moral obligation to conform to the law’s requirements. Morality needs
law, but law is subject to morality.
Rules of the road also illustrate another way in which law’s institu-
tional resources enable it to supplement morality. The moral imperative
not to harm others by unsafe conduct requires us all to drive on the
same side of the road; but the decision whether to drive on the right or
the left is, we might say, morally neutral—provided a decision is made one
way or the other, morality is satisfied regardless of which side is chosen.
Philosophers refer to this sort of decision as being concerned purely with
‘coordination’ of human behaviour. By contrast, for instance the choice
between various possible speed limits is much more than a matter of
coordination: it is not enough that everyone is required to drive at the
same speed—that speed must also promote safety. People are unlikely to
disagree ‘on moral grounds’ about which side of the road to drive on; but
they may well disagree about the safe speed to drive at.
With this general discussion under our belts, let’s return to tort law. On the
one hand, tort law, like law generally, is subject to moral evaluation.
Because law and morality are both social normative practices, they cover
much the same ground as one another. In some cases, morality and law
may contain one and the same norm—for instance, do not deliberately
cause another person physical injury unless you have some justification
for doing so. In fact, many legal norms simply reflect more-or-less iden-
tical moral norms. If this were not so, the law would be open to perva-
sive and constant criticism for being inconsistent with morality. Stable
and successful social life depends on law being largely congruent with
the morality of the bulk of society’s members (Goodin 2010). We might
speculate that people who know what the law requires will be more
inclined to conform to it if it is consistent with their personal morality.
Anyway, most people know little law. Such people, we might suppose,
will be much more likely to conform to the law if what the law tells them
to do is what their morality would require of them independently of
the law. Many of the more general principles of tort law, as well as its more
detailed rules, would strike most people as being ‘moral common-sense’
either because they more-or-less precisely reproduce moral principles
or, especially in the case of more detailed rules that supplement such
10 Tort Law
rinciples, the rules are consistent with those principles. This is not to
p
say that tort law raises no morally controversial issues. For instance, there
has been considerable debate about ‘the morality’ of awarding damages
against a doctor whose negligence in performing a sterilisation opera-
tion leads to the birth of an unwanted but healthy child (Cane 2004);
and of compensating the so-called ‘worried well’—people who have, for
instance, been tortiously exposed to a potentially harmful substance such
as asbestos without, so far, suffering any physical harm, but who worry
that one day they will succumb to some asbestos-related disease, such as
asbestosis, or lung cancer or mesothelioma, as a result of their exposure,
and who seek recompense for the anxiety of knowing that one day they
may become ill.
Such examples alert us to several other things that law can do by virtue
of having the sort of institutional support that morality typically lacks.
One is to manage moral disagreement. Members of modern societies
disagree about all sorts of moral issues that affect their dealings with
others. In some—perhaps many—cases, we can live perfectly happily
together while ‘agreeing to disagree’. In other cases of disagreement,
however, allowing people to follow their own personal morality regard-
less of what others think and do may produce social conflict and instabil-
ity, and may even lead to violence. In the US, pervasive disagreement over
the moral status of abortion regularly leads not only to social conflict but
even to criminal behaviour such as murder and arson. Law can play an
important role in preventing disagreement over ideas and values turning
into dysfunctional behaviour. It is law’s authoritativeness that enables it
to perform this function. People who accept that the law has authority
over them may be prepared to comply with it even if it is inconsistent
with their personal morality, provided that they believe this will promote
beneficial social harmony. Of course, if people do not respect the law, or
the law is inconsistent with some moral principle that they consider to
be fundamentally important and, in some sense, non-negotiable, they
may not be prepared to comply even if this would promote harmony.
For them, the personal moral cost of compliance for the sake of social
harmony would be too high. It is, perhaps, not easy to think of rules or
principles of tort law that would raise such strong feelings: we will likely
feel able to live even with those aspects of tort law with which we disagree
on moral grounds in the knowledge that others, with whom we value
living in social harmony, think differently.
Another area in which law’s institutional resources give it an edge over
morality is that of detecting and investigating wrongs and providing
Tort Law 11
remedies. Because, for most people, there are no moral police or courts,
there is no one that victims of moral wrongs can call upon to help them
bring to light and investigate such wrongs. As for remedies, because of
the institutional weakness of morality, many moral penalties, punish-
ments and redress typically take forms that do not require the alleged
wrongdoer to do anything very demanding. By contrast, because deci-
sions of legal institutions are backed by the state’s legitimate power of
coercion, they can effectively impose a wide variety of punishments and
remedies on wrongdoers, including the payment of compensation, which
is the most common remedy for torts.
We may summarise the discussion in this chapter by saying that
because tort rules and principles are law, they are backed up by law’s
institutional resources. The significance of this point for our purposes
is that the powers and capacities of legal institutions make a major con-
tribution to lifting tort doctrine off the page and giving it life. Without
institutional support, tort law would be much more inert than it is.
On the other hand, it is probably safe to say that law’s institutional
resources are more important for detecting, investigating and remedy-
ing breaches of tort law (‘torts’) than for securing conformity to the law.
As we will see in Chapter 9, it is commonly argued that tort law is useful
partly to encourage people to act in certain desirable ways and deter them
from acting in other undesirable (tortious) ways. However, there is an
important difference between conformity and compliance: a person’s
behaviour may conform to law regardless of whether that person is moti-
vated to comply with the law (Stone 2016). Conformity is merely acting
as the law requires for whatever reason. Compliance is doing what the law
requires because the law requires it. If we take seriously the probability
that most people know very little tort doctrine and understand very little
about how legal institutions work, conduct in conformity with the law
is more likely to be the result of compliance with extra-legal norms—
notably norms of personal (and social) morality—than with legal norms.
Whatever the strengths of legal institutions, they may have relatively
little to contribute to securing compliance with law. At the same time,
however, in some matters the law plays such a large role in supplementing
broad, moral norms that people frequently seek advice in advance about
how to conform to the law. Good examples are taxation, and buying and
selling land and buildings. In such contexts, perhaps, conformity is typi-
cally underpinned by a motivation to comply. Again, we may suppose,
when people drive on the correct side of the road and obey speed limits
they are typically complying with the law, not merely conforming to it.
12
3
Torts
KI 2: Tort law is the law of torts
Just as the proposition discussed in the previous chapter—that ‘tort law

is law’—contains an important truth, so does the—superficially banal—
idea that tort law is the law of torts. Look at the contents pages of a stand-
ard tort law textbook. There you will find more-or-less puzzling head-
ings such as Trespass, Nuisance, Conversion, Defamation, Conspiracy,
Negligence, Occupiers’ Liability, Product Liability and so on. Each of
these names ‘a tort’. Together, the recognised torts (more than 30 on
one recent count: Mulheron 2016, 2–7) are a bit of a rag-bag. The first
five items on the list just given apparently refer to specific types of con-
duct. ‘Negligence’ looks more like a way of way of acting—negligently as
opposed to carefully—rather than any specific action. The last two items
apparently relate to activities—occupation (of land) and being involved
(in some unspecified way) with products.
Next, for a contrast, look at the contents pages of a standard contract
law textbook. Everything, here, seems much more logical and coherent.
The various chapters are all concerned, in one way or another, with this
one thing called a ‘contract’—making contracts, interpreting contracts,
breach of contract, remedying breaches of contracts, and so on. Some
contract books will also tell you about specific types of contract, such as
contracts of sale, contracts of hire, employment contracts, and so on. But
these are different types of the one thing called ‘a contract’—they are not
different ‘contracts’. Lawyers normally think of contract law as the law of
contract (singular), not the law of contracts (plural).
Now, third, look at the contents pages of a standard criminal law
textbook. The chapters typically fall into two broad categories. The first
group of chapters, which may be called ‘general principles’ or ‘the general
part’, deal with matters such as the elements of a crime (mens rea and
14 Torts
actus reus), defences, parties to crime (corporations, accomplices and the

rest), sentencing, and so on. The second group of chapters, which may
be headed ‘specific offences’ or ‘the special part’, name offences—murder,
theft and so on—and discuss them as applications of the general princi-
ples surveyed in the first part.
Finally, go back to the tort law textbook. Here you will find no ‘general
part’ and, typically, only a brief and rather desultory attempt, in the first
chapter, to ‘define’ the word ‘tort’, together with a discussion of things that
torts are not, notably crimes and breaches of contract. This might give the
impression that tort law is a residual category, a sort of random collection
of things that don’t belong anywhere else, but without anything much to
bind them together except the covers of the book. How did this rather
odd situation come about?
Tort law is one of the many ‘areas of law’ into which lawyers divide the
large body of English law to make it easier to understand, teach and use.
Other areas of law, besides criminal law and contract law, include consti-
tutional law and property law. Most people have a serviceable, if rough,
understanding of what we mean by a ‘crime’, a ‘constitution’, a ‘contract’,
and ‘property’. These are all words used more-or-less frequently in every-
day speech with meanings related to their more precise legal counterparts.
By contrast, only lawyers use the word ‘tort’ with any regularity or famili-
arity. And yet tort law is relevant to a wide range of common phenomena
as diverse as industrial disputes, scurrilous newspaper articles, transport
accidents, noisy neighbours, dangerous pharmaceutical drugs, vicious
dogs, and so on. The word ‘tort’ is derived, through French, from a Latin
word commonly translated as ‘wrong’. However, this is not a very use-
ful translation because on the one hand, not all conduct that the law
considers wrongful is ‘tortious’ (in other words, not all legal wrongs are
‘torts’: KI 4). For instance, crimes and breaches of contract can also be
called legal ‘wrongs’. On the other hand, not all torts consist of conduct
that would commonly be called or considered ‘wrongful’. For instance,
trespassing on another’s land is a legal wrong—a tort—even if the ‘tres-
passer’ reasonably and honestly believed that the land was their own and
that they were entitled to be there.
Although some of the situations tort law deals with are features
particularly of the modern world, many have been characteristic of social
life since the birth of the English legal system, which we can date, notion-
ally, at 1066. However, the concept of ‘tort law’ as a legal category was
invented only in the latter half of the nineteenth century when scholars
Torts 15
began organising law into ‘areas’. Before that, English law was divided
up differently and organised along ‘formulary’ lines. At the heart of the
‘formulary system’ were ‘writs’. These were the documents by which court
actions were begun, equivalent to what we would now call a ‘statement of
claim’. A writ has been helpfully compared to ‘a modern administrative
form, with preprinted sets of words corresponding to the claim they are
used to make, and dotted lines the applicant will fill in to explain the par-
ticulars of his case’ (Descheemaeker 2009, 191). Lawyers thought of ‘the
particulars’ of the claim (that is, what it was about) in terms of ‘causes
of action’—nuisance, libel, trespass and so on. The writ was the ‘form of
action’, and each cause of action had a corresponding form, which had
to be used to make a claim based on that cause. Use the wrong form and
no matter how good the claim in substance, it would fail because of the
defective form (think of visa applications today!); and if there was no
appropriate form of action, there was no cause of action.
The formulary system was abolished in England in the nineteenth
century. This development shifted attention away from form and onto
substance. It encouraged new thinking about the principles underlying
the various causes of action that were no longer encased in the forms of
action. The process is well illustrated by the development of tort liabil-
ity for negligence. The concept of ‘negligent conduct’ as a basis of tort
liability began to emerge early in the nineteenth century, before the abo-
lition of the formulary system, as a response to new social problems of
industrialisation, such as increasing numbers of road accidents. Later
in the century, some jurists (a useful word to use to refer collectively to
judges and legal scholars) argued for recognition of a general principle of
liability for negligent conduct. By contrast, others thought that liability
for negligence should be framed in terms of various discrete relation-
ships such as doctor and patient, occupier of land and visitor, carrier and
passenger; and by reference to the various different activities associated
with such relationships (such as providing medical care or occupying
land). This latter, category-based (or ‘functional’) approach had more in
common with older, formulary, ways of thinking than did the ‘principle-
based’ (or ‘conceptual’) approach.
In fact, both approaches are still reflected in modern tort law. What
we call ‘torts’—defamation, deceit, trespass, nuisance, and so on—are
the modern counterparts of the old causes of action. What’s more, the
category-based approach that refers to relationships and activities is still
reflected in discrete elements of tort law referred to as ‘occupiers’ liability’,
16 Torts
‘employers’ liability’ and ‘product liability’, for instance. It is this that

leads to the idea that we have a law of torts (plural), not a law of tort
(singular). At the same time, it is reasonably accurate to say that the mod-
ern law embodies a general principle of liability for negligent conduct.
Ironically, however, the prime manifestation of the negligence principle
is the so-called ‘tort’ of negligence. The development of this modern
‘cause of action’ post-dated the abolition of the formulary system and
culminated only in 1932 in the decision of the House of Lords in Donoghue
v Stevenson [1932] AC 562. What’s more, modern tort law contains no
general principle of liability for causing harm intentionally, and no gen-
eral principle governing when conduct can amount to a tort regard-
less of whether it was intentional or negligent—or, as it is more usually
put, when ‘strict liability’ can arise. Instead, the issue of the ‘standard of
liability’ is resolved piecemeal in relation to each particular tort (except
the tort of negligence, under which only negligent conduct can be tor-
tious). The peculiarity of the tort of negligence is that it is the only tort
based on a standard of liability as such. At the same time, negligence is
sometimes the standard of liability in other torts, such as trespass; and
in relation to some torts, the standard of liability may vary according to
the factual circumstances of the case being considered. For instance, the
standard of liability for trespass to land may vary according to whether
or not the landowner claims that the trespasser not only entered the land
without permission but also damaged the land or things on the land.
The upshot of all this is that there is no obvious or easy answer to the
questions, ‘what is a tort?’ and ‘what (if anything) do all torts have in com-
mon?’ Although the law has a reasonably coherent legal concept of ‘a con-
tract’, we have no similarly coherent legal concept of ‘a tort’. We know that
torts can die and that new torts can be born. For instance, the old tort of
‘detinue’, which existed for centuries, was killed off by statute in 1977. In
recent years, a new tort of ‘harassment’ appears to have been created. But
because we lack understanding of the basic nature of the wrongs that the
law calls ‘torts’, there can be arguments about whether or not a particular
tort exists. For instance, no one really knows whether ‘breach of confi-
dence’ and ‘invasion of privacy’ are, or are not, torts. This can cause prob-
lems because, as we have noted, torts are only one species of legal wrong,
and it sometimes matters in practice whether a particular wrong belongs
to the species ‘tort’ or to some other species, such as ‘breach of contract’
(for more on this see Barker, Cane, Lunney and Trindade 2012, 6–10).
Perhaps the best we can say is that a tort is what legal institutions with the
Torts 17
power to make tort law (Parliament and courts) say is ‘a tort’. After all, the
word ‘tort’ is legal jargon, not a term in use outside the law.
It has to be admitted, however, that this conclusion is rather unsat-
isfying. Saying ‘torts are what lawyers call torts’ leads inexorably to that
most typical of children’s questions: why? It is not surprising, therefore,
that some scholars have tried to identify a characteristic that all the rec-
ognised torts share. For instance, it has been argued that what makes all
tortious conduct ‘wrong’ is that it involves one person putting themselves
‘in charge of another’ (Ripstein 2016). Some scholars have said that the
common characteristic shared by all torts is that they protect ‘rights’ (for
example, Stevens 2007); while others describe the golden thread that runs
through tort law as a purpose or use such as ‘compensating for harm’,
or ‘deterring wrongful conduct’, or doing ‘corrective justice’ between the
parties. The last of these mooted uses has been particularly popular in
recent years (for example, Weinrib 1995), while the second-last (that
tort law provides incentives to behave in certain ways and not in others)
attracted a lot of followers in the 1960s and 1970s (for example, Posner
(first published) 1973) but never really took off outside the USA. Here
is not the place to explore such approaches in any great detail. They are
all subject to much debate and disagreement. One problem they pose is
that the various suggested unifying explanatory features of tort law are
so abstract that they can be used equally well to explain contract law, for
example, or the whole of ‘private law’ (of which tort law is a part: see more
on this in Chapter 6). Another problem is that despite the elasticity of the
suggested common features, their proponents sometimes end up con-
cluding that the chosen feature cannot explain all torts and all aspects
of tort law. A solution offered for this problem is an argument along the
lines that the torts or aspects of tort law that the chosen feature cannot
explain are wrongly classified by lawyers as torts, or parts of tort law, and
that they properly belong to some other legal category. Unfortunately,
such arguments tell us what their authors think tort law should be rather
than what lawyers say it is.
It is unlikely that a satisfactory ‘grand unifying theory’ of the nature
of a tort and tort law will ever be found; and the reasons are easy to
find. Law is what we might call a ‘cumulative’ phenomenon. This means
that once a legal rule or principle is made by an official or an institu-
tion with the power to make tort law, it will remain part of the law
until it is ‘unmade’. So, for instance, Acts of Parliament remain ‘on the
statute book’ until ‘repealed’ by Parliament. The English statute book
18 Torts
contains some very old statutes that are still in force, such as the Bill of
Rights Act 1689. The basic provisions of the Fatal Accidents Act 1976
(an extremely important statute dealing with aspects of tort law) were
first enacted in 1846 and have remained in force since then because they
have never been repealed; and the 1976 version of the statute has been
amended various times since it was first enacted in that form. Some
judicial decisions have similar staying power. The foundational decision
in ‘modern’ tort law—Donoghue v Stevenson—is now almost a century
old, and there are many cases decided in the eighteenth and nineteenth
centuries that still form an important part of current tort law.
The tort law of today is a complex amalgam of law-making over a
period of centuries by many different judges and many successive Par-
liaments, as interpreted by scholars and applied by courts. The cumula-
tive nature of (tort) law enables it to perform an important function, of
securing settled continuity of social normative practices, which is critical
to stable and successful human life. On the other hand, the ability of
law-makers to change the law allows law to perform the equally impor-
tant function of keeping social normative practices abreast of changing
circumstances and changing values. For instance, the dramatic social
changes associated with industrialisation in the nineteenth century were
reflected in equally radical changes in the law, including tort law. In more
recent decades, changes of ideology associated with the transition, in
the 1980s and 1990s, from the politics of the welfare state in its heyday
after World War II, to the more individualistic values of ‘neo-liberalism’,
have (arguably, anyway) also brought about changes in tort law. Our
current tort law is the evolved product of the activities of many law-
makers over a very long period. We would not expect such a process to
generate a highly coherent and unified body of law. We could liken tort
law to a patchwork quilt, gradually sown together by a group of quilters,
then used and repaired for generations: all the patches will have some
things in common (although perhaps not very many), but the differences
between them are just as important as any similarities to our apprecia-
tion of the whole quilt.
Remember, too, that tort law is partly the work of legal scholars who
write the tort books. The shape of tort law owes a lot to the writers of
the first tort texts in the late nineteenth century. Although Parliament
and courts make discrete rules and principles of tort law, that law as a
whole has never been consolidated or stated in one place by any law-
making institution. Therefore, when we try to understand ‘tort law’, our
Torts 19
subject is, in an important sense, an invention of scholars with no official

law-making role. Scholars who attempt to find unifying theories of tort
law are engaged in a similar task to that undertaken by the early text-
book writers: trying to decide what ought to be included in a tort book
and what ought to be left out. There is no official, ‘legal’ answer to this
question because law-makers do not write law books. Put differently,
perhaps, there is no ‘formal code of tort law’ which sets out all the basic
rules and principles of tort law in one place.
For such reasons, the strategy adopted in this book (and worked out in
the next two chapters) for deepening the reader’s understanding of tort
law is not to look for a unitary theory to explain all its components and
features but rather to provide a sort of ‘structural’ account that acknowl-
edges the historical process of legal development and preserves its internal
diversity but also brings out some recurring patterns. The aim is to allow
the reader to rise above the fine-grained detail of the law and to d iscern
a larger picture, but without making any claim that this perspective
reveals that the contents of tort books have a deep organic unity or that
there is a legal equivalent of the physicists’ holy grail—the ‘elementary
particle’ from which everything is built.
20
4
Torts Unpacked
KI 3: Each tort has two main elements:

(1) conduct that is classified by tort law as wrongful
and
(2) one or more interests with which that conduct has interfered
in ways specified by tort law
The strategy in this chapter is to unpack the inherited causes of action

(‘torts’) into two components. In the next chapter, these components will
be put back together again in a different pattern. This should make the
internal operation and structure of tort law clearer than does its tradi-
tional division into causes of action called ‘torts’. The aim is to breathe
some life into the tort doctrine on the pages of the tort books by uncover-
ing what it can tell us about human social life.
Tort law starts with the idea that human beings have interests that
are vulnerable to being ‘interfered with’ or ‘harmed by’ human conduct.
Harmful conduct might be that of the very person whose interest is
harmed, or it might be conduct of another person. Tort law, we might
say, is about certain types of harmful interferences with certain types of
interests. A tort is a harmful interference by one person—let’s call that
person the ‘harm-doer’—with an interest of another person—let’s call
that person the ‘harm-sufferer’. As already noted, not all harmful inter-
ferences with legally protected interests of another are tortious. Further-
more, while a person may harm an interest of their own, self-harm is
not tortious. However, conduct of the harm-sufferer can affect the legal
position of a harm-doer by wholly or partly relieving the harm-doer of
legal liability. Tort law, like contract law, is about—and only about—
how individual people interact with other individuals. This is not true of
criminal law, for instance. Some crimes—such as drug possession—are
22 Torts Unpacked
‘victimless’ in the sense that the law prohibits certain conduct regardless
of whether it interferes with or harms the interests of any other person.
By contrast, there are no ‘victimless torts’.
We are all, at one and the same time, both potential harm-doers and
potential harm-sufferers. Tort law is concerned, positively, with the
interests we all share as potential harm-sufferers but also, negatively,
with the interest in freedom of action we all share, as potential harm-
doers. ‘Autonomy’—being free to live one’s life as one wants—is perhaps
the fundamental political and legal value of modern Western culture.
By branding certain conduct as tortious, the law interferes with that
interest. We accept this on condition that the law should interfere with
our interest in freedom of action only to the extent necessary and reason-
able for successful social life. Tort law, we may say, is concerned to protect
our interests as potential harm-sufferers, but only to the extent consistent
with leaving us, as potential harm-doers, with a reasonable amount of
freedom of action. In tort law, freedom from harm and freedom of action
are, as it were, in equilibrium: the interest in freedom from harm marks
the boundaries of the interest in freedom of action (and vice-versa).
We will begin the chapter by looking at the interests, protected by tort
law, that we all share as potential harm-sufferers. In the second part, we
will examine the interest in reasonable freedom of action that tort law
accords to us all as potential harm-doers. We will, in addition, mention
some other interests of potential harm-doers and of society to which tort
law offers some protection.
1. PROTECTED INTERESTS OF POTENTIAL

HARM-SUFFERERS
INTERESTS IN BODY AND MIND
Tort law recognises that every human being has an interest in good health
and in being whole in body and mind. However, it also insists that any life
is better than none, and so does not allow ‘wrongful life’ claims in which a
child seeks to recover from a doctor damages for having been born disa-
bled as a result of negligent failure by the doctor to alert the mother to
the risk of the child being born disabled, thus depriving her of the chance
Protected Interests of Potential Harm-Sufferers 23
to seek a therapeutic abortion. Furthermore, of course, tort law does not

allow actions by healthy children complaining of having been born as
a result of a failed abortion or sterilisation. (Somewhat inconsistently,
however, the law protects parents in both types of case from having to
bear the financial and emotional cost of rearing a disabled or unwanted
child.)
In theory, tort law does not distinguish between disease (such as
cancer) and ill-health (such as bronchitis) on the one hand, and trau-
matic injuries (such as cuts and bruises or the loss of a limb) on the other.
In practice, however, the interest in freedom from traumatic injury is
much better protected than interests in freedom from disease and illness
(Stapleton 1986). An important reason for this is that it is often harder to
establish the precise cause of an illness or disease than a trauma and, so,
harder to prove that it resulted from tortious behaviour by an identifiable
individual.
On the other hand, tort law does distinguish formally between injury
to the body (including the brain) and injury to the mind. It gives more
protection to the body than to the mind by being more ready to recognise
bodily injury as harm than to classify mental injury in this way. This dis-
tinction between physical injuries and mental injuries probably reflects
more general social attitudes towards mental illness, which many people
are more inclined to think of as just the way ‘normal’ people sometimes
are, rather than as the result of anything that might have been done or
happened to them. Another reason why the law distinguishes between
body and mind may be that in general, it is less easy for the external
observer to verify a person’s mental state than their physical condition,
because we know relatively little about the relationship between the brain
and mental states. Finally, the distinction probably reflects a common
feeling that people can reasonably be expected to put up with mental
problems more than with physical problems.
Tort law distinguishes two types of mental injury. One is actionable
only if the victim has suffered some other type of actionable injury as
well; and the other may be actionable even if that is the only injury that a
person has suffered. Mental suffering of the first type is commonly called
‘pain and suffering’ in cases where it accompanies physical injury; and
‘anxiety and inconvenience’ when it accompanies damage to property or
financial loss (for example, Attia v British Gas [1988] QB 304). Mental
suffering of the second type is commonly called ‘nervous shock’. A more
accurate alternative phrase is ‘medically recognised psychiatric illness’.
24 Torts Unpacked
This phrase pinpoints the crucial difference between the two types of
mental suffering: the second type is suffering recognised by the medical
profession as ill-health or injury, whereas the first type need not be
beyond the limits of what are accepted as normal mental reactions to
external events or stimuli. The term ‘nervous shock’ is first found in
early-twentieth-century cases in which liability for mental suffering was
first allowed. These were cases in which people suffered a ‘shock’ as a
result of being involved in or witnessing horrific accidents. Now mental
injury may, in certain cases, form the basis of a tort action even if it is not
the result of a shock in this sense.
Tort law, then, takes two quite different approaches to mental injury.
It will react to mental injury standing alone only if it is medically recog-
nised as abnormal; whereas, if mental injury is accompanied by some
other actionable injury, tort law will react to it even though the injured
person’s mental state would not be described as abnormal.
Nervous shock is itself divided into two types depending on whether
or not it is a ‘direct’ result of a tort. An example of ‘direct nervous shock’
would be ‘stress-induced’ mental illness resulting from an excessive
workload imposed on an employee by an employer (for example, Barber
v Somerset CC [2004] 1 WLR 1089). Another example would be mental
illness suffered by the occupant of a car as a result of being involved in
a road accident; or by a rescuer as a result of helping at the scene of an
accident. If the harm-doer’s conduct created a foreseeable risk that the
harm-sufferer would be caused bodily (as opposed to mental) injury,
the harm-doer can be held liable for direct nervous shock suffered by
the harm-sufferer even if it was so abnormal a reaction to the tort that
it could be described as ‘unforeseeable’, and even if, in fact, the harm-
sufferer suffered no bodily injury (Page v Smith [1996] AC 155). Victims
of direct nervous shock are called ‘primary victims’. Indirect nervous
shock is shock suffered as a result of witnessing (even passively) the plight
of primary victims of physical or mental injury (Alcock v Chief Constable
of South Yorkshire [1992] 1 AC 310). Victims of indirect nervous shock
are called ‘secondary victims’.
Tort law gives much less protection to secondary victims of mental
injury than to primary victims. First, the secondary victim’s mental suf-
fering must have been the result of suffering a ‘shock’ in a colloquial sense.
This means, for instance, that a secondary victim is not protected against
psychiatric illness resulting from caring for an injured person over a long
period of time. Second, the secondary victim’s mental injury must not
have been so abnormal that it was not ‘reasonably foreseeable’. Third, the
secondary victim must (as a general rule) have been in a relationship of
‘love and affection’ with the primary victim. Some relationships (such as
parent and child) are assumed to be relationships of love and affection,
but others (such as aunt and nephew) will only qualify as such if the
secondary victim can prove that they enjoyed close ties of love and affec-
tion with the primary victim. Fourth, the secondary victim must have wit-
nessed the shocking incident or its ‘aftermath’ personally; shock suffered
as a result of receiving merely verbal reports is not actionable, although
watching live TV coverage of an incident might count as personal obser-
vation. There is no precise definition of ‘aftermath’, but it is said to refer
to phenomena that were quite close in time and space to the incident.
The rationale for these limitations on liability to secondary victims is
unclear, and many people find them unsatisfactory and even repugnant.
How can we justify a rule that requires mentally traumatised people to
go to court and prove that they have strong feelings of love and affection
towards another? But how ought the law to be changed? One approach
might be to abolish liability to secondary victims or even to all victims
of nervous shock standing alone (Stapleton 1994b, 95–96). Diametrically
opposed is an approach which would allow any victim of reasonably
foreseeable nervous shock to recover (Mullany and Handford 1993).
Various intermediate positions involving reform of some of the rules
about secondary victims but not others could be imagined and might
appeal to some people.
DIGNITARY INTERESTS
Tort law protects people not only from bodily and mental injury but also
from attacks on their ‘dignity’ and on those aspects of their life and per-
sonality that define their individuality. For example, depriving a person
of liberty may be tortious. Unwanted physical contact may be tortious
even though it causes no bodily injury if, for instance, it is of an intimate
nature. Invading a person’s privacy by entering their land without their
consent may be tortious.
For much of its history, tort law was mainly concerned with protecting
people from physical injury and from interference with their tangible
property. The only dignitary interests to which tort law offered signifi-
cant protection were personal liberty and reputation. Social demands for
26 Torts Unpacked
legal protection against invasions of privacy and sexual harassment, for

instance, are quite recent. In the absence of action by Parliament, the
courts have found it difficult (because of the legacy of formularism) to
develop tort law to provide such protection. A good illustration of this
difficulty is provided by the courts’ response to the problem of s talking.
Stalking may not cause bodily injury or a recognised psychiatric illness
and it may involve no intrusion onto the victim’s land. In several cases,
courts toyed with the idea of creating a new tort of ‘harassment’, but
eventually Parliament stepped in with the Protection from Harassment
Act 1997. A particularly striking example of the shortcomings of the
formulary approach is provided by Kaye v Robertson [1991] FSR 62 in
which a celebrity was badly injured in an accident. Journalists, ignoring a
‘restricted visiting’ sign on the door of his hospital room, photographed
him in bed and ‘interviewed’ him. A rather lurid story was subsequently
published about him in their newspaper. The court thought that the
journalists were guilty of a gross invasion of privacy, but the only basis in
tort law which could be found for a decision in the celebrity’s favour was
the obscure tort of ‘injurious falsehood’. On this basis, the harm-doers’
wrong was not invading the harm-sufferer’s privacy but, rather, implying
in their article his consent to its publication had been obtained. This,
it was said, damaged his professional reputation by suggesting that he
would do ‘anything for money’. To this day, there is no ‘tort of invasion of
privacy’ as such, although the law does protect against certain invasions
of privacy such as unjustified disclosure of private information.
By contrast, tort law has protected reputation for centuries. This it
does chiefly through liability for defamation. A person’s reputation is
what other people think of the person as opposed to the person’s pride
or sense of self-worth. A defamatory statement is one that would tend
to lead ‘right-thinking people’ to think less of its subject or lead them to
‘shun or avoid’ that person. Notice the use of the words ‘would tend’ in
this definition: one of the most curious aspects of the law of defamation
is that it imposes liability not for damaging a person’s reputation but for
making a statement that the court thinks could damage the person’s rep-
utation. The claimant in a defamation action need present no evidence
of actual damage to reputation. One result of this rule is that defama-
tion claimants are often viewed as ‘gold-diggers’, more interested in their
hurt feelings and their bank-balances than with any negative impact on
their reputations. Indeed, the accusation is sometimes made that a defa-
mation action is being used as a source of publicity and to enhance the
claimant’s future prospects rather than to recover lost esteem. In other

words, although defamation is formally concerned with reputation, the
rule that proof of damage to reputation is not necessary means that in
practice, defamation claims are often more concerned with things other
than reputation.
CIVIL AND POLITICAL INTERESTS
One of the major legal developments of the twentieth century has been
the widespread adoption of ‘bills of rights’ embodying, above all, civil
and political rights such as freedom of speech, freedom of movement
and association, and personal liberty, which are fundamental to active
citizenship. Of the main civil liberties protected by modern bills of
rights, the common law of tort has traditionally protected the right to
vote (Ashby v White (1794) 6 Mod 45) and personal liberty. Wrongful
arrest and wrongful imprisonment are torts which, for centuries, have
been used to counter abuse of public (and private) power. Interference
with freedom of speech or with freedom of movement and association
have never, as such, been heads of tort liability. However, as we will see
later in the chapter, these interests (in the guise of ‘the public interest’)
are sometimes protected in ways that benefit potential harm-doers.
PROPERTY INTERESTS
Common-Law and Equitable Property

One of the most important uses of tort law is to protect interests in tan-
gible and intangible property. Property law creates property interests and
tort law protects them. Not all the sorts of interests people can have in
relation to property are property interests. Most importantly, a person
can have a contractual right to use property without having a property
interest ‘in’ that property. Contractual interests are considered later.
Tangible property is either ‘real’ or ‘personal’. Real property is land and
things attached to it. Personal property (also called ‘chattels’) is move-
able. Intangible property is anything that lacks a physical form and over
which the law grants people property rights. Examples include patents,
trademarks and other ‘intellectual property rights’, and debts.
28 Torts Unpacked
To understand the role of tort law in protecting property rights, it is

necessary to distinguish between ‘common law’ and the law of ‘equity’.
For many centuries (until the nineteenth century) there were two distinct
sets of courts in England—common-law courts and equity courts. The
equity courts developed out of a medieval practice of litigants, who were
dissatisfied with a decision of one of the King’s (‘common-law’) courts,
of petitioning the Lord Chancellor (effectively, the King’s prime minister)
to force the successful party to act ‘equitably’ in relation to the petitioner.
Gradually, this practice was formalised and the Court of Chancery was
established. The rules of ‘equity’ made and administered by the Chancery
Court were effectively glosses on the body of common law administered
by the King’s courts, designed to make good inadequacies or injustices in
the common law. Perhaps the most important invention of the Chancery
court was the ‘trust’. Put simply, the trust is a device that allows an owner
(the ‘settlor’) to transfer ownership of property (the ‘trust property’)
to another (the ‘trustee’) on condition that the trustee manage it for
the benefit of (‘in trust for’) a third party (the ‘beneficiary’). Whereas the
common-law courts would allow the trustee to treat the property as their
own, Chancery was prepared to enforce the condition in favour of the
beneficiary. The trustee was said to be the ‘legal owner’ of the trust prop-
erty and the beneficiary was the ‘equitable owner’. In other words, the
trustee had a ‘legal’ property interest in the trust property while the ben-
eficiary had an ‘equitable’ property interest. Both tangible and intangible
property could be put ‘into trust’, but the ‘equitable property’ belong-
ing to the beneficiary was always intangible—it was, in effect, a right to
enforce the terms of the trust against the trustee ‘in Chancery’. The result
of this institutional history is that property ‘torts’ protect only against
interference with legal property; wrongful interference with equitable
property is not a tort but an ‘equitable wrong’.
Tort law was developed by the common-law courts. In the formative
years of the common law, only tangible things were recognised as ‘prop-
erty’. Most torts that protect interests in intangible property—notably
‘intellectual property’ such as patents, trademarks, copyright and design
rights—were created much later by statute. The prime use of intellectual
property rights is to facilitate control by the owner of the commercial
exploitation of fruits of intellectual effort. Infringements of intellectual
property rights are not normally discussed in the context of tort law but
they are, in effect, ‘statutory torts’.
The statutory tort of infringement of a trademark effectively protects

what is called ‘goodwill’ by protecting marks that attract business to their
owners. Goodwill itself (the power to attract customers) is also protected
by the common-law tort called ‘passing-off’. Passing-off involves one per-
son misrepresenting that another person’s goods or services are their own.
The common-law tort of passing-off protects goodwill as such by treat-
ing it as a form of property. The statutory tort of infringement of a trade
mark protects goodwill indirectly by treating business-attracting marks
(rather than the goodwill itself) as property. The common-law courts
never developed torts that could be used to protect copyright and patents.
What is ‘Interference with Property’?

The legal concept of ‘property’ is a very tricky one. In one sense, property
is things. But not all things are property in the legal sense. For instance,
the air we breathe is not anyone’s property, and in a society where slavery
is prohibited, living human beings are not property. To say that some-
thing is property in the legal sense is to say that people can have certain
rights and obligations ‘over’ it that are recognised as ‘incidents of prop-
erty’. Tort law protects property from various forms of interference, each
of which relates to one of the incidents of property.
The basic interest in property protected by tort law is ‘possession’, not
‘ownership’ (or ‘title’). To be ‘in possession’ is to have control of the prop-
erty or the right to control it. For example, for the duration of a lease of
real property, the lessor does not have a right to control the property and
so can be liable in tort for dispossessing the tenant. Depriving a person
of (the right to) possession is called ‘misappropriation’, and only prop-
erty that can be possessed—tangible property—can be misappropriated.
Misappropriation involves taking another’s (moveable) property away
from them, or taking possession of another’s (immoveable) property. But
conduct will amount to misappropriation only if it is inconsistent with
that other person’s interest in the property. For example, one person may
use another’s pen without misappropriating it. ‘Trespass to land’ is the
tort of misappropriating real property. A colloquial term for misappro-
priation of real property is ‘squatting’. ‘Conversion’ is the tort of misap-
propriating chattels.
A second ‘incident of property’ is the right to exploit it. Unauthorised
exploitation of property falling short of misappropriation may be a tort.
30 Torts Unpacked
To exploit property is to make use of it for one’s benefit. Examples of

exploitation of real property include using land for access, or for parking,
or for tipping waste; invasions of airspace by signs (for example, Kelsen
v Imperial Tobacco Co (of Great Britain and Northern Ireland) Ltd [1957]
2 QB 334) or the jibs of cranes (for example, Woollerton v Richard Costain
Ltd [1970] 1 WLR 411); and the placing of scaffolding on adjoining land
to facilitate building work (for example, John Trenberth v National West-
minster Bank Ltd (1980) 39 P & CR 104). ‘Joyriding’ would be an example
of exploitation of a chattel. Exploitation of land or goods may amount to
the tort of trespass. Passing-off also involves exploitation of property, in
this case the goodwill of a business.
A third incident of property is the right to ‘use and enjoy’ it. No tort
directly protects the right to use and enjoy chattels; but depriving some-
one of the use of a chattel, for instance, might be actionable as a trespass
or conversion. The most important tort that protects the use and enjoy-
ment of real property from interference is private nuisance, which is an
unreasonable interference with the use and enjoyment of land. Typical
examples are noisy neighbours and factory emissions. Such interference
may result in damage to the land itself, financial loss (as in the case of
a hotel blighted by noise), or ‘amenity damage’. ‘Amenity’ refers to the
pleasure and enjoyment which people get out of their property. Some
aspects of the enjoyment of land are not protected. For instance, blocking
a view cannot be a nuisance; nor can interference with TV transmission
by the construction of a building (Hunter v Canary Wharf Ltd [1997]
AC 655). Private nuisance only protects the use and enjoyment of people
with property interests in the land; effectively, this means owners and
tenants. For instance, it is not a tort to interfere with the use and enjoy-
ment of mere occupants, such as members of an owner’s or lessee’s
family, even if their use and enjoyment of the property is just as affected
as that of the owner or lessee. This rule is a function of the theory that
nuisance is interference with property rights rather than interference
with use and enjoyment as such.
A fourth incident of property is the right to freedom from damage.
In the case of tangible property, the damage in question is physical; and
it includes destruction or loss. It is also possible to ‘damage’ intangible
property in the sense of reducing its value. For instance, one actiona-
ble form of infringement of a trademark is called ‘dilution’. The power
of a trademark is to attract people to buy the goods or services of the
mark-owner. If an identifying mark is used widely enough, it may lose its
drawing power. This has happened in the case of the word ‘hoover’, which
in popular usage has become a synonym for ‘vacuum cleaner’ rather than
the identifying name of a vacuum cleaner made by one particular manu-
facturer. Whereas exploitation of a trademark involves taking advantage
of the drawing power of the mark, damaging it by dilution consists of
reducing its drawing power. A common-law tort concerned with damage
to intangible property is injurious (or ‘malicious’) falsehood. Injurious
falsehood is, in effect, commercial defamation. The property in question
is goodwill, and the damage is reducing the power to attract customers
by making a false statement about a person’s goods, services, business or
occupation.
CONTRACTUAL INTERESTS
Contractual rights are rights under existing contracts (as opposed to the
chance of making a contract in the future). A contract is a legally enforce-
able arrangement for transferring resources (property or services)
from one person to another. Most of the legal rules which can be used
to protect contractual rights are treated as part of the law of contract.
However, there are some rules of tort law that provide such protection.
Tort law may protect a contracting party against conduct detrimental to
the party’s rights under the contract done by the other contracting party
(‘breach of contract’), or done by a ‘third party’, that is, someone not a
party to the contract.
In general, tort law does not protect contractual rights over property
(such as the right to use property) but only ‘proprietary’ rights, such as
possession. Protecting contractual rights over property is the province of
contract law. However, tort law does protect against third-party infringe-
ment of rights under contracts not concerned with the use of property
(such as contracts for the sale of goods or the provision of services).
The tort of ‘interference with contract’ protects against action by one
person (D) that results in non-performance by A of a contract between
C and A, causing financial loss to C. D’s action might consist of inducing
A not to comply with the contract by persuasion or threats (‘intimida-
tion’), or D might disable A from complying with the contract.
In addition to such protection against third-party interference, con-
duct that amounts to a breach of contract (by the other party to the con-
tract) may amount to a tort. In particular, negligent breaches of contract
32 Torts Unpacked
may also be actionable as tortious negligence. Tort law does not protect
against any and every breach of contract. For instance, many breaches of
contract consist not of harmful actions (‘misfeasance’, or ‘causing harm’)
but of harmful failures to act (‘omissions’, or ‘nonfeasance’, or ‘failing to
prevent harm’). In general, tort law provides less protection against non-
feasance than against misfeasance. The typical breach of contract which
is also a tort is negligent misfeasance in the performance of services.
In such cases, tort law protects the same interest as contract law, namely
the interest in careful performance of the contract.
Tort law provides some protection for ‘contractual expectancies’—that
is, opportunities to make advantageous contracts in the future and to
make financial or other gains by contracting. Tort liability for misstate-
ments which induce a person to enter a contract protects a person’s inter-
est in not making a contract in the mistaken belief that it will be more
advantageous than it in fact turns out to be. Tort liability for contract-
inducing misstatements may attach to the other party to the contract or
to a third party.
Torts such as ‘intimidation’ and ‘(unlawful means) conspiracy’ pro-
vide protection against ‘unlawful’ conduct done with the intention of
interfering with a person’s opportunities for contracting. The purpose
of such interference will typically be to prevent one person contracting
with another or to ‘force’ the harm-sufferer to contract with the inter-
ferer, or both. Such conduct is often called ‘interference with business’ or
‘interference with trade’. A rather different form of liability for interfer-
ence with the opportunity to contract can arise under statutes such as the
Sex Discrimination Act 1975 and the Race Relations Act 1976, one of the
aims of which is to create statutory tort-like causes of action for refusal to
contract with a person because, respectively, of their sex or race.
NON-CONTRACTUAL EXPECTANCIES
Tort law may protect opportunities of receiving financial gain in

the future by means other than entering an advantageous contract.
For example, if a provision in a will giving a legacy to an intended ben-
eficiary is legally invalid because of some defect in the will resulting from
the negligence of a legal adviser, the beneficiary may recover the value of
the intended legacy from the lawyer (White v Jones [1995] 2 AC 207). More
important, perhaps, is the protection given to family members deprived
‘Countervailing’ Public and Private Interests 33
of continuing financial support by the death of another member of the

family. Under the Fatal Accidents Act 1976 ‘dependants’ of a person who
has been wrongfully killed have a cause of action in tort to recover for
loss of (actual and) expected financial support from that person.
WEALTH
Property rights and contractual rights are wealth-producing assets; and

in a market economy, the opportunity (freedom) to make contracts is
the chief legal technique for wealth-creation. One way in which tort law
protects wealth is by protecting wealth-creating assets; and one of the
ways it does this is by compensating for financial loss (that is, reductions
of wealth) caused by certain sorts of interferences with wealth-creating
assets. Tort law also provides some protection to wealth in its own right—
the ‘capital’ which a person’s wealth-generating assets represent and
produce. In other words, sometimes tort law makes good reductions of
wealth without reference to any asset which represents or generated that
wealth. For instance, in the tort of deceit, a fraudster may be held liable
for having induced another to give money away; and in certain circum-
stances, tort law provides protection against paying more than its value
for a substandard service or item of property. This residual category of
cases in which tort law protects the interest in wealth as such is very
small. Most heads of tort liability protect one or other of the interests
discussed above.
2. ‘COUNTERVAILING’ PUBLIC

AND PRIVATE INTERESTS
Beside the interest in freedom of action that we all share (considered

later), tort law also protects, and juxtaposes to the interests of potential
harm-sufferers, certain other interests that we share as potential harm-
doers (‘private interests’) and as members of society (‘public interests’).
The protection given to some countervailing public interests takes the
form of providing harm-doers with defences to tort claims. Statutory
provisions that ‘authorise’ conduct which might otherwise be tortious
are an important source of such defences. Common-law public interest
34 Torts Unpacked
defences to defamation claims (truth, absolute and qualified privilege,

and fair comment) play an important part in protecting freedom of
speech and information. There are also defences to claims for wrongful
arrest and imprisonment to promote maintenance of law and order.
Other countervailing public interests are protected not by defences but
by immunities. Whereas defences typically focus on the harm-doer’s con-
duct, immunities typically reflect the harm-doer’s status. And whereas a
defence only becomes relevant after the harm-doer’s conduct has been
adjudged tortious, an immunity prevents a person’s conduct being sub-
jected to scrutiny in a tort action. For instance, participants in court
proceedings (judges, advocates, witnesses, litigants) enjoy an immunity
from tort liability in respect of things said and done by them in those
proceedings. MPs enjoy absolute privilege in the law of defamation in
respect of things said in ‘proceedings in Parliament’. Public bodies (such
as regulatory agencies) may enjoy statutory immunity from tort liability
for negligence, and there is a complex body of judge-made law designed
to immunise ‘policy’ decisions of public bodies from tort liability.
The protection of public interests by tort law reflects the fact that
human beings are social animals. Although some of our interactions with
other people have few if any social ramifications (and in that sense are
purely private), many of our dealings with others can only be properly
understood in their social context. More particularly, the significance of
harm-causing conduct can be affected by its social value. For instance,
the significance of publication by a newspaper of a true but damaging
story about a prominent political figure is assessed in light of society’s
legitimate interest in knowing the truth about its politicians. In publish-
ing the truth, the newspaper is acting, as it were, on behalf of society and
not just in its own commercial interests. The social interest in the con-
duct strengthens the personal interest that the publisher has in freedom
of action.
Defences designed to protect private interests of potential harm-doers
include self-defence (an answer to liability for intentional infliction of
personal injury), defence of property (a defence to liability for deliberate
entry onto land and intentional infliction of personal injury), necessity
(an answer to a claim for intentional or negligent damage to property),
and justification (an answer to liability for intentional infliction of
economic harm where the harm-doer’s motive was to protect his or her
own legitimate financial interests).
Harmful Conduct 35
There is another very important personal countervailing interest rec-

ognised by tort law, namely freedom of contract. The basic rule is that a
person is free to contract with another to limit or exclude the person’s
potential liability in tort to the other. This freedom has been consider-
ably modified by statute. For example, under the Unfair Contract Terms
Act 1977, a term in a contract designed to exclude or restrict liability for
negligently-caused personal injury is ineffective; and a clause purporting
to exclude liability for any other type of damage negligently caused is
only effective to the extent that the clause is ‘reasonable’. The main thrust
of these provisions is to protect private individuals against the superior
bargaining power of businesses. The Road Traffic Act 1988 prohibits
exclusion of liability for negligence on the roads because it is compulsory
to insure against such liability.
Tort liability may, in certain circumstances, be excluded or restricted
by non-contractual agreement. For example, the liability of landowners
to lawful visitors in respect of dangers on their land can be modified by
a (non-contractual) ‘notice’ that was brought to the visitor’s attention
(Ashdown v Williams [1957] 1 QB 409). Liability for negligent misstate-
ment may be modified by a (non-contractual) ‘disclaimer’ given to its
addressee when the statement was made (Hedley Byrne & Co Ltd v Heller
& Partners Ltd [1964] AC 465). The basis on which such non-contractual
exclusions or limitations are effective is that if (as is generally the case)
the landowner was free not to allow visitors onto the land, or if the
person making the statement was free to remain silent, the landowner
and the speaker respectively were also free to specify the conditions on
which the freedom would be exercised in the harm-sufferer’s favour.
Under the Unfair Contract Terms Act non-contractual notices and dis-
claimers of negligence liability are subject to similar controls as apply to
contractual provisions.
3. HARMFUL CONDUCT
We now turn to the other main element of the tort equation, as it

were: the types of conduct from which tort law provides (and does not
provide) protection. Just as tort law protects interests of both potential
harm-sufferers and potential harm-doers, so it is also interested in
36 Torts Unpacked
c onduct of both groups. Put differently, tort law plays a part in d

efining
the freedom of action not only of potential harm-doers but also of
potential harm-sufferers.
THE CONCEPT OF HARM AND THE REQUIREMENT

OF DAMAGE
So far, tort law has been presented as about the ‘doing and suffering of
harm’. Now it is necessary to distinguish between ‘harm’ and ‘damage’.
In some cases, tort law provides protection against conduct only if it
inflicts ‘damage’ on the harm-sufferer. The paradigm example is the tort
of negligence. Here, ‘damage’ means physical or financial injury. In such
cases, it is said, ‘damage is the gist of the tort’, and tort law protects
interests only if damage to the harm-sufferer results from the conduct
that interferes with the interest. In other cases, by contrast, tort law pro-
tects interests regardless of whether the conduct that interferes with
the interest causes any damage to the harm-sufferer. In such cases, it
is said, the harm-causing conduct is ‘actionable per se’. In other words,
the conduct that interferes with the interest is considered ‘harmful’
even if it results in no damage to the harm-sufferer. What is action-
able is the interference as such (‘per se’), which is the ‘gist’ of the tort.
Per se torts include misappropriation of land and chattels, and certain
types of unauthorised exploitation of tangible and intangible property.
Defamation is actionable per se in the sense that substantial damages
for injury to reputation may be recovered even though the claimant
does not have to (and could not) prove injury to reputation resulting
from the defamatory publication.
In cases where damage is the gist of the harm-sufferer’s complaint,
tort will provide protection only if the harm-sufferer can prove that
harm-doer’s conduct caused damage to the harm-sufferer. Even in cases
where harmful conduct is tortious per se, if the harm-sufferer claims to
have suffered damage as a result of the tortious conduct (for instance,
where the conduct is trespass to land and the claim is that the harm-doer
not only entered the land but also damaged it), tort law will protect the
harm-sufferer’s interest in not being damaged only if the harm-sufferer
can prove that the harm-doer’s conduct caused the damage. Causation
is a very complex and difficult area of tort law about which more will be
Harmful Conduct 37
said in Chapter 7. The basic point being made here is that conduct may
be tortious and ‘harmful’ regardless of whether it causes any ‘damage’ to
the harm-sufferer.
‘CONDUCT’
In tort law, the word ‘conduct’ can refer both to acts and omissions or,
more technically, ‘misfeasance’ and ‘nonfeasance’. Both misfeasance and
nonfeasance can be tortious. For instance, suppose A digs a hole in the
unlit path leading from the gate of A’s house to its front door. B falls into
the hole at night and is injured. We would say that by the act of digging the
hole, A caused B’s damage—if A had not dug the hole, B would not have
been injured. Suppose, alternatively, that the path had become pot-holed
by the elements and C tripped in a hole at night. In this case we might say
that A caused C’s injury by omitting to repair the path: if A had kept the
path in good repair, C would not have been injured. Put another way, we
might say that whereas A caused B’s injury, A failed to prevent C’s injury.
In some cases in everyday life, we may judge a person less harshly for
failing to prevent injury than for bringing it about. The thug who beats
someone up may be judged more responsible for the person’s injuries
than the victim’s (or the thug’s) companion who makes no attempt to
thwart the attack. But in other cases, we may react differently. A parent
who harms their child by failing to feed it, even though they could afford
to, is unlikely to be thought less culpable than a parent who causes the
same harm by serving their child poisoned food. A passer-by who ignores
an abandoned baby may be judged no less harshly than the parent who
abandoned it. Just as omissions may attract as much moral censure as
acts, so omissions may attract the same legal sanctions as acts.
In Donoghue v Stevenson [1932] AC 562, Lord Atkin said that the reli-
gious injunction to love your neighbour is translated by tort law into the
principle that you must take care not to injure your neighbour. He did
not mean by this that tort law does not impose liability for omissions.
Indeed, the legal definition of negligent conduct is couched negatively
in terms of a failure to take reasonable care; and a failure of reason-
able care can consist either in doing something the reasonable person
would not do or not doing something the reasonable person would do.
As in everyday life, so in tort law: not doing can be as wrongful as doing.
38 Torts Unpacked
Our attitude to omissions, in both law and life, depends on various f actors
including the status and situation of the person who fails to act, the costs
of acting (both to the actor and to others), the status and situation of the
person who would benefit from action, and the nature and size of that
benefit. Perhaps all that can be said in general terms is that ‘acts … are
often worse than omissions … because they create the … harms and risks
of harm which omissions fail to remedy’ (Honoré 1991, 33).
LEGAL STANDARDS OF CONDUCT
Tort law holds potential harm-doers to various different standards of

conduct. In some cases, it protects interests only against deliberate, inten-
tional conduct, while in others it also protects against negligent conduct,
and in yet others, against conduct regardless of whether it is intentional
or negligent. In this section, these various standards of conduct are
explored in the abstract. In the next chapter, interests and conduct will
be brought together to show the types of conduct against which tort law
protects various interests.
Only Voluntary Conduct Can Be Tortious

Conduct can be tortious only if it was ‘voluntary’. An involuntary action
is a bodily movement over which the person had no control. If A physi-
cally overpowered B and used B as a missile to knock C to the ground, we
would not say that B voluntarily knocked over C, or even (perhaps) that B
knocked over C, but that A knocked over C using B. If A’s car collides with
B’s car and causes it to knock over C, a pedestrian, we would not say that B
voluntarily knocked over C, or even (perhaps) that B had knocked over C.
Suppose a person’s lack of control is the result of some infirmity or
incapacity resulting, for instance, from age, illness or intoxication. Tort
law does not treat as involuntary bodily movements which are outside a
person’s control because of self-induced incapacity caused, for instance,
by deliberate consumption of excessive amounts of alcohol or drugs.
Lack of control will also be irrelevant if the person knew or ought to have
known that they would or might not be able to control their movements.
But a person who is unaware of suffering from a condition that may
significantly impair bodily function may escape liability for harm caused
as a result of unexpected onset of the condition (Mansfield v Weetabix Ltd
[1998] 1 WLR 1263).
Harmful Conduct 39
Doing something ‘automatically’ is not doing it involuntarily.

‘Automaticity’ is typically a result of repetition of tasks and the acquisi-
tion of skill. An experienced driver, for example, will do many things
automatically or ‘without thinking’ or ‘inadvertently’ that a learner
would do deliberately and attentively. Involuntary acts are uncontrollable
whereas automatic acts are controllable but not consciously controlled.
Far from being exempt from tort liability, automatic behaviour is fre-
quently the very essence of tortious negligence. The competent driver
is one who knows when it is necessary to pay attention and when doing
things automatically will be safe.
Involuntariness must also be distinguished from incapacity. It is no
answer to tort claim for the harm-doer to say that it was beyond their
physical, mental or intellectual capacity to avoid committing a tort,
even if the lack of capacity was not self-induced but was the result, for
instance, of their genetic inheritance. The basic rule of tort law is that
people are liable for failure to measure up to certain standards of behav-
iour even if reaching the required standard was beyond their capacities
at the relevant time. Tort law does not exempt people from liability sim-
ply because they have the ‘bad luck’ of lacking the capacity, through no
fault of their own, to measure up to the standards of conduct the law
establishes. One explanation for this approach is that since everything
a person does is affected to a greater or lesser extent by factors beyond
their control (‘luck’), exempting human beings from responsibility for
any action which was not entirely within their control would destroy our
sense of ourselves as rational, free agents, which is central to our individ-
uality and feelings of achievement and self-worth. What’s more, because
our positive achievements in life are also more or less affected by factors
beyond our control (‘good luck’), it is considered unacceptable to take
credit for them without being prepared to shoulder the blame for our
failures, even though these are the result, more or less, of matters beyond
our control (‘bad luck’). Luck is an inescapable fact of life, and our ideas
of personal responsibility largely ignore it. Only when a person’s luck is
abnormally or a typically good or bad are we likely to take it into account
in allocating praise or blame to them.
Deliberation, Intention and Recklessness

There is an important distinction between ‘voluntary’ conduct and
‘deliberate’ conduct. All deliberate conduct is voluntary, but the converse
40 Torts Unpacked
is not true: conduct can be voluntary without being deliberate. Think

of automatic or ‘inadvertent’ conduct, for instance. In tort law, conduct
will sometimes be wrongful only if it is deliberate. For instance, induc-
ing, encouraging, authorising or conspiring in the tortious conduct of
another can be tortious only if it is deliberate. However, tort liability very
often attaches to inadvertent conduct.
In tort law, there is also an important distinction between ‘deliberate’
conduct and ‘intentional’ conduct. Conduct is deliberate if it is done with
deliberation: automatic conduct is not deliberate. Conduct is intentional
if it is done with the intention (or ‘aim’) of causing a particular conse-
quence. All intentional conduct is deliberate, but the converse is not true:
not all deliberate conduct is intentional—that is, aimed at producing a
particular result. A person may, for instance, deliberately hit another per-
son and thereby cause the other’s death without intending to kill that
person. But a person who hits another, intending to kill the other thereby,
could not claim to have hit without deliberation. Some torts (such as
intimidation) can be committed only by conduct that is intentional in
this sense—ie conduct that is not only deliberate but also aimed at
having a particular effect (such as economic loss).
Recklessness is different from intention. Like intentional conduct,
reckless conduct is necessarily deliberate. But to intend a consequence
is to aim at producing it. To be reckless about a consequence is to know
that one’s action may produce it, without caring whether it will or not.
A person who ought to have known, but did not actually know, of the risk-
iness of their conduct is not reckless. Although intention and recklessness
are clearly distinguishable in theory, in tort law (as opposed to criminal
law) they are generally treated as equivalent. A requirement in tort law, to
prove (for instance) that D intended to injure C, can normally be satisfied
by proof that D actually knew that their conduct might injure C but did
it anyway. This is probably because both intentional and reckless conduct
necessarily involve deliberation. Deliberate interference with another’s
interests is distinguishable from non-deliberate interference whether the
outcome was intended or only the object of indifference. Harming a per-
son by deliberate conduct indicates a fundamental lack of respect for that
person’s individuality.
Recklessness is also different from motive. To say that someone acted
with indifference to consequences tells us nothing about why they did it.
Motive is also different from intention. My intention in hitting someone
may be to hurt them, but my motive for doing so may be to impress a
Harmful Conduct 41
friend. The general rule in tort law is that the motive with which con-
duct was done is irrelevant to its tortiousness. If an interference with the
interests of another would not, as such, be tortious, the fact that it was
done out of a bad motive (with ‘malice’) would not make it tortious.
Conversely, tortious interference with the rights of another cannot be
excused by pleading a good motive.
Negligence
The concepts of deliberation, intention and recklessness refer to states
of mind. By contrast, in tort law ‘negligence’ refers not to a state of mind
but to failure to reach a certain standard of conduct. There is no nec-
essary relationship between states of mind and negligence. Deliberate,
intentional and reckless conduct alike may attract tort liability for neg-
ligence if the conduct satisfies the definition of negligence by failing to
attain a certain standard. Negligence as failure to attain a standard must
be distinguished from the ‘tort of negligence’. The tort of negligence is a
cause of action with three main elements: a duty of care, a breach of that
duty, and damage caused by the breach. As failure to attain a standard,
negligence corresponds to the second of these elements; and in this guise,
it is also an element of certain other torts, such as trespass to the person
causing personal injury.
Central to the concept of negligent conduct is the notion of ‘risk’. Life
is full of risks. We are often prepared to accept a certain degree of risk
in order to secure the benefits that risky activities bring. Underlying the
concept of negligence is the assumption that a certain level of risk is an
inevitable and acceptable feature of human life. Negligence consists of
imposing an ‘unreasonable’ level of risk without taking reasonable pre-
cautions to prevent the risk materialising. The concept of negligence is
not about eliminating risk but about reducing it to an acceptable level by
taking reasonable precautions.
Several factors are taken into account in determining whether a per-
son has been negligent in this sense. The first is whether the activity in
which the harm-doer was engaged was valuable enough (or whether its
benefits were great enough) to make the risks attached to it acceptable.
For instance, in one case the question was whether the risks attaching to
allowing left-hand drive vehicles on public roads were justified by the fact
that there was a shortage of ambulances (Daborn v Bath Tramways Motor
Co Ltd [1946] 2 All ER 333). Some activities, such as saving life and limb,
42 Torts Unpacked
may be thought to justify the taking of risks which less valuable activities
might not. But if an activity is considered not to be worth the risks atten-
dant upon it, it would be negligent to engage in that activity.
Once it has been decided that it was not negligent to engage in the
activity in the first place, the next question is whether the risk that has
materialised was foreseeable. It is not negligent to fail to take precautions
against an unforeseeable risk. A foreseeable risk is one which a person
ought to have foreseen even if they were not consciously aware of the risk.
In tort law, this point is made by saying that foreseeability is an ‘objective’,
not a ‘subjective’ concept. The relevant question is not whether a per-
son was actually (‘subjectively’) aware of a risk but whether they ought
(‘objectively’) to have been aware of it.
What risks does tort law require people to foresee? Foresight is a func-
tion of knowledge, and the relevant questions are: at the time when it is
alleged that the harm-doer ought to have taken precautions against the
risk, did anyone have the knowledge required to foresee it? If so, ought
the harm-doer have had that knowledge? The concept that tort law uses
in answering this second question is that of ‘reasonableness’. The harm-
doer ought to have had the necessary knowledge if a reasonable person in
the harm-doer’s position would have had it.
Assuming that it was not negligent to engage in the activity in the first
place, and that the risk was foreseeable, the next question is whether the
harm-doer took reasonable care or precautions to eliminate the risk or
reduce it to an acceptable level. This involves assessing the relative weight
of three factors: the probability that the risk will materialise if no precau-
tions are taken to prevent it, the likely seriousness of the adverse effect
on the harm-sufferer if it does materialise, and the cost and difficulty of
reducing the risk to a reasonable level. In light of these factors, the ques-
tion is whether the harm-doer acted reasonably in the face of the risk, in
the way the reasonable person would.
In theory, at least, the probability and likely seriousness of many risks
could be ascertained with some degree of statistical precision, as could
the cost of elimination or reasonable reduction. In practice, however,
many risks are unquantifiable or their magnitude is contested; and there
may frequently be irresolvable disagreement about the cost of elimi-
nation or reasonable reduction. Even if reasonably precise and agreed
mathematical values could be given to the three factors of probability,
seriousness and cost, their relative weight and the ultimate question of
acceptability is inevitably a matter of judgment. Like decisions about the
Harmful Conduct 43
value of activities, decisions about the acceptability of risks are ultimately

based on the decision-maker’s view of what constitutes the good society.
Also, although the three factors listed above represent the formal struc-
ture of reasoning about reasonable care, in practice the three factors are
often not explicitly referred to and the court will simply make a global
judgment about reasonable care.
Whether any precautions taken were reasonable is judged in the light of
all the circumstances, as a ‘question of fact’. However, there are also certain
relevant legal (ie fixed) principles which apply to all cases of negligence.
First, tort law explicitly recognises two degrees of unreasonableness—
let’s call them ‘ordinary unreasonableness’ and ‘extraordinary unrea-
sonableness’. Ordinarily unreasonable conduct is conduct which, in the
court’s view, would be thought unreasonable by the generality of people
suitably qualified to have an opinion on the matter, even if some of those
people would think it reasonable. Extraordinarily unreasonable conduct
is conduct which, in the court’s view, would be thought unreasonable by
all those suitably qualified to have an opinion on the matter: if a suitably
qualified body of opinion, however small, would think the conduct rea-
sonable, it would not be extraordinarily unreasonable.
Normally, conduct will fail the test of reasonableness if it is ordinarily
unreasonable. However, in certain cases, conduct will fail the test of rea-
sonableness only if it is extraordinarily unreasonable. The two main cat-
egories of case in which the extraordinarily unreasonable test applies are
claims against medical practitioners (and, perhaps, members of the other
long-established professions, such as lawyers) (Bolam v Friern Hospital
Management Committee [1957] 1 WLR 582), and certain actions against
public authorities such as county councils. Such leniency to doctors
and other professionals is designed to give them freedom to experiment
with unorthodox but potentially beneficial practices. It is also based on
a belief that being held liable for negligence is likely to have a particu-
larly damaging effect on the reputation and livelihood of professionals.
This approach is highly controversial. The leniency to public authorities
is based on a desire not to overburden the public purse with orders to pay
damages, and the idea that government needs considerable freedom to
act (or to refrain from action) in the public interest, even if such conduct
injures individual citizens.
In judging whether a person’s conduct was reasonable, various cir-
cumstances are normally ignored (Nettleship v Weston [1971] 2 QB 691).
The first is the harm-doer’s degree of relevant skill or experience with the
44 Torts Unpacked
harm-causing activity. The pragmatic justification for this rule is that it

would be exceedingly difficult to operate a system of standards of care
that varied according to individual skill and experience. This might seem
harsh on harm-doers; but as between the two parties, it is considered fair
that the risk of lack of skill or experience should rest on the harm-doer
rather than the harm-sufferer, especially since any failure by the harm-
sufferer to take reasonable care of their own interests can be treated as
‘contributory negligence’ or ‘voluntary assumption of risk’, which are
defences discussed below.
Second, age is ignored unless the person was too young yet to have
developed the mental and social skills, imparted by education and expe-
rience, necessary to have an adult appreciation of risk (McHale v Watson
(1966) 115 CLR 199). This rule is based on a unitary conception of
adulthood which, while perhaps scientifically contestable, is considered
ethically sound. As far as the law is concerned, adults who cannot take
reasonable precautions should not engage in risky activities; but if they
do, they cannot complain if they are required to bear the consequences.
Third, the harm-doer’s financial resources and physical and mental
abilities are also usually ignored. The value-judgement underlying this
rule is similar: that people ought to acknowledge their limitations and
mould their activities accordingly. Those who cannot afford, or are not
able, to take necessary precautions against the risks of an activity should
not engage in the activity; but if they do, they cannot complain if they
are required to bear the consequences. In two situations, however, tort
law does take account of the harm-doer’s resources and abilities, namely,
when a landowner is sued for injury suffered by a trespasser arising out of
some danger on the land, and where a landowner is sued for damage suf-
fered by a neighbour as a result of neglect by the landowner of the state
of the land (Goldman v Hargrave [1967] 1 AC 645). In these two contexts,
landowners are not expected to take precautions beyond their resources.
The first of these exceptions is usually justified on the basis that trespass-
ers are, in some sense, undeserving; and the second rests on an old idea
that landowners should be free to do what they want with their land, even
to the point of letting it deteriorate.
Conduct Neither Intentional Nor Negligent

Tort law sometimes classifies as wrongful conduct that was not inten-
tional, reckless, negligent or, even, deliberate, provided it was voluntary.
Harmful Conduct 45
Tort liability for such conduct is called ‘strict’. Tort law recognises sev-
eral quite distinct types of strict liability. First, strict liability may attach
to voluntarily doing a specified act, most notably interference with or
exploitation of another’s property without their consent or legal justifi-
cation. For example, a person can be liable for taking another’s property
and treating it as their own even if they did not know and had no reason
to know that the property was not theirs (as when a person is duped into
buying a stolen car), and even if they did not deliberately take it (as when
a person inadvertently takes a pen from a customer desk in a bank). This
form of strict liability expresses the very high value put on real and per-
sonal property, and the importance attached to making it easy for people
to recover their property by recourse to law and discouraging possibly
violent self-help. The institution of private property is fundamental to
our society, and a powerful way of expressing the distinction between
‘what is mine and what is yours’ is through such a rule of strict liability.
This form of strict liability is also found in the law of defamation.
The basic rule (subject to limited qualifications) is that a person can be
liable for defamation even if they did not know and had no reason to
suspect that they were publishing a defamatory statement, or even that
the defamed person existed. Once again, strict liability here expresses
the very high value put on reputation, although many would question
this valuation now that freedom of expression is thought so important.
Indeed, in light of the fact that tort liability for inflicting personal injury
or property damage is typically not strict, giving such strong protection
to property and reputation may seem out of touch with contemporary
values.
A second type of strict liability is called ‘vicarious liability’. Vicarious
liability is liability for the tortious conduct of another, and it is imposed
on the basis that the person vicariously liable is in a certain relation-
ship with the harm-doer. The main relationship which attracts vicarious
liability is that of employer and employee—employers are vicariously
liable for tortious conduct of their employees, committed in the course
of their employment. The employer may be vicariously liable even if
the employer did not intend the tortious conduct to be committed; was
not negligent in letting it happen and did not know and could not have
known that it was happening; and even if the employer had forbidden
the conduct.
The law of vicarious liability is complex, and this complexity has
defeated many attempts to justify it. Two types of argument can be
46 Torts Unpacked
entioned here. The first seeks to find a justification in some principle

m
of personal responsibility. For instance, it has been suggested that those
who engage in activities for profit should bear the costs of tortious con-
duct arising out of that activity (Stapleton 1994a, chapter 8). The second
type of argument seeks to justify vicarious liability in terms of ‘efficient
loss distribution’. Arguments of this type rest on the assumption that an
important use of tort law is to compensate victims of tortious conduct.
Vicarious liability furthers this aim by increasing the chance that the vic-
tim will be compensated: in general, employers are likely to be in a better
position than employees to pay tort damages or to insure against tort
liability. A full assessment of these contrasting approaches would require
a detailed exposition of the law of vicarious liability and a close examina-
tion of the arguments, which is not possible here.
A third type of strict liability in tort law is based on the idea of risk
creation. This form of strict liability, unlike the first two, applies to sit-
uations in which the harm-doer’s risky conduct causes damage to the
harm-sufferer. The liability is strict because the harm-doer can be liable
even without intending to cause damage to the harm-sufferer, without
recklessly ignoring the risk of damage, and without being negligent in
creating the risk. This third type of strict liability is very rare in tort law,
especially in judge-made tort law. Under the so-called ‘rule in Rylands
v Fletcher’ a landowner can be held liable for the escape from the land of
things likely to cause damage if they escape, and which the landowner
has accumulated on the land for their own purposes and in the course of
a ‘non-natural’ use of the land. On the face of it, this principle looks like
a principle of strict liability: the risky activity is accumulation of dan-
gerous things for a non-natural purpose, and the principle contains no
requirement of intention, recklessness or negligence. However, the rule
has been interpreted in such a way as to weaken its claim to be a rule of
strict liability. The term ‘non-natural’ has been given a meaning close to
‘negligent’; there can be liability under the rule only in relation to ‘fore-
seeable’ damage; and although the harm-sufferer need not prove that
the escape was the result of either deliberate or negligent conduct by the
landowner, the landowner will not be liable if the escape can be shown
to have been the result of a natural event or human conduct that was not
foreseeable by the harm-doer.
The rarity of this third form of strict liability in tort law may be
explained by an idea that there should be ‘no legal liability in tort
without fault’. This adage rests, perhaps, on an assumption that in daily
Harmful Conduct 47
life people are not held responsible for outcomes that they did not intend
and that they could not have avoided with reasonable care. However, this
assumption is contestable. It has been argued, for instance, that we are
sometimes prepared to hold a person responsible for an outcome that
the person caused but that they neither intended nor could have avoided,
provided the person is of ‘full age and capacity’, so to speak (Honoré
1988). The basic idea of ‘outcome responsibility’ is that risk-taking is part
of ordinary human life, and that when we take risks, sometimes things
turn out well and sometimes they turn out badly. Since we take the ben-
efit when things turn out well, we may be expected also to take respon-
sibility when things turn out badly, even if we could have done nothing
to prevent the bad outcome. This argument by itself does not, of course,
tell us when outcome responsibility, as opposed to responsibility only for
fault, is appropriate.
Some people have found problematic not only strict liability for dam-
age but also negligence liability. The test of reasonableness in negligence
is objective. Reasonable precautions are precautions that the reasonable
person would have taken regardless of whether they are precautions that
the person whose conduct is under scrutiny could have taken. Under this
test, people may be held liable in negligence for doing things that
they could not personally have avoided doing at the relevant time and
for failing to do things that they could not personally have done at the
relevant time, not because of any ‘fault’ on their part but just because
they had the ‘bad luck’ to be born lacking the skill or capacity needed to
meet the standard of conduct which the law considers to be reasonable.
However, it might be argued that because the good or bad luck of being
born with certain characteristics is an ineradicable feature of the human
condition, we must all do what we can to correct deficiencies in our per-
sonalities and capacities that are apt to produce wrongful conduct. We
should also (it might be thought) avoid tasks that we know or ought to
realise we are not capable of performing without harming others. Argu-
ments like this may justify holding people responsible for conduct that
they could not have avoided.
We may even blame people for conduct attributable to incorrigible
personal characteristics or forgivable ignorance of their limitations.
Everything we do (or fail to do) is affected to a greater or lesser extent
by ‘lucky’ factors beyond our control, including our personal endow-
ments. If people could disclaim responsibility for their conduct sim-
ply by pointing to the role of luck in their endowments and capacities,
48 Torts Unpacked
the whole concept of personal responsibility, on which our sense of our-

selves and others as rational and free agents depends, would dissolve.
It is only when a person’s natural endowments fall below a minimum
level that we are prepared to allow luck to affect our judgements about
the person’s responsibility for their conduct. Just as it is often acceptable
for people to claim personal credit for conduct that is partly a product
of their good luck in having a certain personality and certain capacities,
so people must often accept responsibility for conduct that is partly a
product of bad luck in having a certain personality and certain capacities.
Tort law, then, is a complex mixture of principles of personal respon-
sibility for conduct (whether intentional, reckless or negligent) and per-
sonal responsibility for outcomes (strict liability). Different ideas underlie
these two forms of responsibility. Responsibility for conduct rests on
ideas about how we ought to behave in going about our various activi-
ties, while responsibility for outcomes rests on the idea that we should
compensate for adverse consequences of our risky activities. Viewed in
this way, tort liability for outcomes is a sort of tax on activities that attract
such liability rather than a penalty for engaging in them. Responsibility
for conduct, by contrast, implies disapproval of the liability-attracting
conduct that does not attach merely to liability for outcomes.
SELF-HARMING CONDUCT
As we have already noted, tort law is concerned with the conduct of

harm-sufferers as well as harm-doers. This concern partly finds expres-
sion in certain defences to tort liability that relate to the conduct of the
harm-sufferer.
Contributory Negligence
Negligent conduct on the part of the harm-sufferer (‘contributory
negligence’) may provide an answer to a tort claim in the sense of jus-
tifying a reduction in the damages payable to the claimant. Contribu-
tory negligence consists of failure to take care for one’s own interests;
and it may be intentional (Corr v IBC Vehicles Ltd [2008] 1 AC 884).
The concept of unreasonable conduct underlying contributory negligence
is essentially similar to that underlying liability-attracting negligence.
For instance, contributory negligence is an objective concept depending
on what the reasonable person would have done in the harm-sufferer’s
Harmful Conduct 49
position. However, the law allows people to take less care for their own
interests than it requires people to take for the interests of others. In tech-
nical terms, this means that in judging the reasonableness of the precau-
tions a person takes to protect their own interests, the law makes more
allowance for age, resources, and physical and mental capacity than in the
case of liability-attracting negligence.
Is contributory negligence an answer to a claim based on intention/
recklessness? The Law Reform (Contributory Negligence) Act 1945, which
created the defence, does not resolve this issue. If a person intends to
harm another, it may not seem fair to allow that person to argue that
the victim did not take sufficient care to protect himself or herself from
being harmed. The idea that a person might have ‘deserved what they got’
because they took insufficient precautions to avoid it may be acceptable
as a judgment of the harm-sufferer relative to other (hypothetical) harm-
sufferers. But the important question concerns the relative positions of
the harm-sufferer and the harm-doer.
So far as strict liability is concerned, it might be argued that if fault
is irrelevant to the issue of whether the harm-doer’s conduct attracts
liability, it should also be irrelevant to the issue of whether the harm-
sufferer’s conduct gives rise to a defence. However, the strength of this
argument may depend, in part, on the sort of strict liability in issue.
In relation to strict liability for outcomes (the third type of strict liability
discussed earlier), we might think it fair both to require potential harm-
sufferers to take reasonable care for their own safety, and also not to allow
harm-doers to plead as a defence the negligence of anyone other than the
harm-sufferer. This sort of approach is reflected in the fact that statutes
which impose outcome-based strict liability not infrequently also allow
contributory negligence to be pleaded as a defence. It might also seem
fair that a defendant who is vicariously liable should be allowed to take
advantage of a defence of contributory negligence which was available to
the harm-doer. By contrast, in the case of the type of strict liability the
primary role of which is to protect property rights (and analogous inter-
ests, such as reputation), the law has consistently followed the principle
that people should not be expected to take care of their own property: the
fact that I am careless of my property may make me an unworthy owner,
but it does not make the property any less mine.
The principle that people should take reasonable care for themselves
as well as for others finds expression in tort law not only in the defence
of contributory negligence but also in rules about when tort liability can
arise in the first place. Such rules figure prominently in the law governing
50 Torts Unpacked
liability for purely economic loss. For instance, liability for financial loss,
suffered as a result of relying on the accuracy of a statement made by the
harm-doer to the harm-sufferer, will arise only if it was reasonable for the
harm-sufferer to rely on the statement as being accurate (Hedley Byrne
v Heller [1964] AC 465).
Consent
In principle, a person cannot complain in tort about conduct to which
they have consented. For example, there can be no liability for trespass to
land if the owner consented to the entry; and it is a defence to an action
for defamation that the person to whom the statement refers consented
to its publication. Consent is a subjective concept: the relevant question
is not whether the reasonable person would have consented but whether
the victim in fact consented. However, consent will provide a defence
only if the harm-sufferer was not ‘forced’ by the harm-doer to consent.
The test of whether consent was forced is ultimately an objective one: did
the victim consent to the tort because the defendant threatened that if
(s)he did not, (s)he would suffer some negative consequence which the
court thinks it would not be reasonable to expect the victim to accept as
the price of avoiding the tort?
In relation to negligence, the defence of consent is usually expressed
in terms of the Latin maxim ‘volenti non fit injuria’ or its English trans-
lation ‘voluntary assumption of risk’. It has often been argued that the
notion of consent-in-advance is inconsistent with the legal concept of
negligence because it is impossible fully to appreciate in advance the risks
attendant upon lack of reasonable care. This argument depends partly
on the incorrect assumption that legal negligence implies inadvertence:
in cases where negligence liability attaches to deliberate conduct, there is no
logical difficulty in the idea of prospective consent. If I freely allow myself
to be driven at night in a car which the driver has told me has no lights,
I may be said to have voluntarily assumed the risk of being injured in an
accident attributable to absence of lights. If I freely agree to be a passenger
in an aircraft piloted by a person whom I know to have consumed
20 units of alcohol in a few hours, I may be said to have voluntarily
assumed the risk of being injured in an accident attributable to the pilot’s
drunkenness (Morris v Murray [1991] 2 QB 6). In such cases I may be
said, by my conduct, to have consented to a lack of reasonable care on
the part of another.
Harmful Conduct 51
Illegality
Suppose the harm-sufferer was acting illegally (typically in breach of the
criminal law) at the time of the harm-doer’s tortious conduct—a not
uncommon occurrence. For instance, many victims of road accidents
are in breach of traffic regulations at the time the accident occurs. Such
illegal conduct on the part of the victim might amount to contributory
negligence. But independently of that, the issue is whether the fact that
the victim was acting illegally provides the harm-doer with a defence.
On the one hand, it might be thought that a person who acts illegally
hardly deserves much sympathy from the law. On the other hand, many
technically illegal acts might not be thought very culpable. Moreover,
suppose the illegal behaviour in no way contributed to the accident or
to the harm-sufferer’s damage; should the mere fact that a harm-sufferer
was acting illegally affect their rights under tort law?
It seems that tort law gives harm-doers a defence of illegality only if
the harm-sufferer’s illegal conduct contributed in some significant way to
bringing about the situation for which the harm-doer is held responsible.
Tort law is not concerned with sanctioning conduct as such. This is the
province of the criminal law, the focus of which is on punishment. Crimi-
nal law may sanction conduct that creates risks of adverse outcomes, even
if the risk never materialises. Tort law, by contrast, will only sanction risky
conduct if the risk materialises. The primary concern of tort law is not
to punish risky conduct but to make good the adverse effects of risky
conduct. Of course, requiring someone to make good the adverse con-
sequences of their risky conduct may be seen as a form of punishment
for that conduct; and in fact, criminal courts have powers to award com-
pensation to victims of crimes, and civil courts have limited powers to
impose ‘punishments’ on tortfeasors. Nevertheless, the focus of tort law
and criminal law are different: criminal law is primarily concerned with
risky conduct as such, whereas tort law is concerned with the adverse con-
sequences of risky conduct. An unsuccessful attempt to commit a crime
may be a crime. There is no such thing as an ‘attempted tort’. The approach
of the law in this respect reflects the idea that whereas the prime function
that the criminal law can fulfil is punishment, the prime function of tort
law is the protection and vindication of individuals’ interests, typically
by compensating for damage suffered. As far as the law is concerned, this
function would be unacceptably compromised if ‘contributory illegality’
on the part of the harm-sufferer, however trivial, provided a defence.
52
5
Torts Repackaged
KI 3: Each tort has two main elements:

(1) conduct that is classified by tort law as wrongful
and
(2) one or more interests with which that conduct has interfered
in ways specified by tort law
In the previous chapter, a tort was unpacked into two separate elements:
protected interests and harmful conduct. Not all torts, and not all pro-
tected interests, were mentioned, but the analysis is equally applicable
to any and every tort. In this chapter we put the pieces back together
again by joining up the two elements to show the sorts of conduct against
which tort law protects interests. This is a complex task, and to do it in
full detail would require a much longer treatment. The aim here will be to
produce a line-drawing rather than a fully worked-up portrait. Because
there are two elements to fit into the picture, the first question is how to
organise the discussion? Here, this is done in terms of protected inter-
ests rather than harmful conduct. Tort claims are, of course, always initi-
ated by harm-sufferers. In practical terms, tort law is first and foremost
a resource that people can utilise to protect and further their interests.
1. INTERESTS IN ONE’S PERSON
INTERESTS IN BODY AND MIND
Personal health and safety lie at the core of tort law. Contract law also
protects this interest; but in both theory and practice, ‘personal injury
54 Torts Repackaged
claims’ based on contract are of marginal importance in the total picture

of contract law. Criminal law is also much concerned with personal
health and safety; and in practice, the conduct which forms the basis of
very many tort claims for personal injuries is criminal as well as tortious.
However, in practice, leaving aside traffic offences, very little criminal
behaviour causing personal injuries ever becomes the subject of a
tort claim.
As we have seen, in tort law there is an important difference between
bodily injury and mental injury. Infliction of bodily injury may be tor-
tious if it is inflicted intentionally, recklessly or negligently and (often)
regardless of whether the harmful conduct directly caused the injury or
merely failed to prevent it. Although tort law recognises no ‘duty to res-
cue’ in the narrow sense of a duty to take difficult, costly or risky steps to
prevent a complete stranger suffering personal injury, in practice there
are many types of case in which tort law imposes liability for failures of
physical protection.
In the ‘tort of negligence’ the device used, to identify when liability
for failure to prevent harm may arise, is the ‘duty of care’. This device
deserves some explanation because most personal injury tort claims are
based on the tort of negligence. This tort has three elements: duty of
care; breach of duty; and damage, ‘not too remote in law’, caused by the
breach of duty. There can be no liability in the tort of negligence unless
the harm-doer owed a duty of care to the harm-sufferer and commit-
ted a breach of that duty, thereby causing damage to the harm-sufferer.
The discussion of negligent conduct in Chapter 4 above was largely a
discussion of the second element. The first, duty of care, element of the
tort of negligence is used to refine and give more detailed content to the
concepts of protected interests and harmful conduct.
The classic general statement about when a duty of care is owed
is the ‘neighbour principle’ enunciated by Lord Atkin in Donoghue
v Stevenson [1932] AC 562, at 580: everyone owes a duty of care to their
neighbours. A neighbour is someone you ought to foresee as likely to
suffer harm if you are negligent. The neighbour principle has since been
fleshed out by a three-stage test under which a duty of care will be owed
if the harm-doer ought to have foreseen injury to harm-sufferer, there
was a ‘sufficient relationship of proximity’ between the harm-doer and
the harm-sufferer, and it would be ‘fair, just and reasonable’ to impose a
duty of care (Caparo Industries Plc v Dickman [1990] 2 AC 605). The first
element (foreseeability) is more-or-less redundant because foreseeability
Interests in One’s Person 55
of risk is central to the concept of negligent conduct. The other two ele-
ments (proximity, and justice and reasonableness) are labels attached
to the various grounds on which the courts think it right to restrict the
scope of liability for negligently-caused injury. The duty of care concept
operates negatively to impose limits on the potentially enormous breadth
of application of the principle that people ought to be legally liable for
negligently-caused injury.
To return to the distinction between acts and omissions that prompted
this digression: in tort law omissions are, in principle, less likely than acts
to be tortious. In general, tort law imposes a duty to take care not to cause
personal injury by a negligent act unless some countervailing reason not
to recognise a duty can be found. In relation to negligent omissions, the
law starts from the other end and looks for some justification for impos-
ing a duty of care. Tort law recognises many duties to take reasonable care
to prevent physical injury. For example, employers owe duties ‘of positive
action’ to protect the health and safety of their workers; and occupiers
of land owe duties of positive action to visitors coming onto the land.
There may be no duty to protect or rescue a complete stranger from
danger, particularly if doing so would be costly or dangerous, but doc-
tors have duties of physical protection towards their patients, as do par-
ents towards their children, school authorities towards their pupils, and
prison authorities towards prisoners. A surveyor or architect employed to
certify the safety of a building would also owe a duty of positive action to
someone injured by the building, whether the employer or not. A person
who creates a dangerous situation may be under a duty to protect or
rescue a person who falls into the danger, even if that person is a stranger.
One important question to which the law currently gives no clear
answer is whether a public regulatory body (as opposed to a private indi-
vidual) charged with the function of monitoring and enforcing compli-
ance with health and safety regulations and standards by citizens, would
owe a duty, to take care in monitoring and enforcement, to a person for
whose benefit the regulations and standards existed and who was injured
as a result of non-compliance with them. The question here is whether the
regulatory body’s responsibility should be treated as outweighed by the
wrongful conduct of the person subject to regulation. It is the latter,
we might say, who was ‘primarily responsible’ for the injuries; the for-
mer was only ‘secondarily responsible’. It is not obvious, we might think,
that the regulator should be totally free of liability simply on the ground
of being only secondarily responsible; especially since the law-breaker
56 Torts Repackaged
could also be held liable and since, as between the two, the law-breaker
would be held liable to pay more of the damages than the regulator. In prac-
tice, however, if regulators owed duties of care to individual beneficiaries
of regulatory schemes, they would present very attractive targets for tort
actions because their liabilities are ultimately underwritten by public
funds (tax revenue). It might also prove very difficult for a regulatory
body held liable in tort successfully to offload part of the burden of lia-
bility on to the law-breaker even though the law-breaker may well have
been, in some sense, much more responsible for what happened than
the regulator.
The duty of care concept is also used to regulate the scope of liability
for mental injuries, which was discussed in Chapter 4.
So much for negligence. Strict tort liability for interference with inter-
ests in body and mind is exceptional. In practice, the most important head
of strict tort liability is vicarious liability. However, vicarious ‘liability’ is
not ‘a tort’ because it arises regardless of whether the person liable did
anything wrong. Liability that is negligence-based in theory may be strict
in practice if the harm-doer bears the burden of disproving negligence
under the so-called doctrine of res ipsa loquitur (loosely translatable as:
this sort of thing does not normally happen without negligence). It is
typically very difficult to prove a negative proposition such as that the
harm-doer did not do anything negligent. The combination of vicarious
liability and reversal of the burden of proving negligence can produce
a particularly powerful form of strict liability. For instance, if a patient
undergoes surgery to restore movement to a stiff finger and ends up
with two stiff fingers, the hospital may be liable even if it cannot be proved
that any member of the theatre staff was negligent, simply on the basis
that this sort of thing does not normally happen without negligence, and
the hospital cannot prove that none of the staff was negligent (Cassidy
v Ministry of Health [1951] 2 KB 343).
Why is strict liability exceptional and ‘fault’ (in the sense of intention,
recklessness or negligence) such a pervasive feature of tort liability for
personal injuries? In general terms, this question is extremely difficult to
answer. It is sometimes argued that fault-based liability is ‘fair’ and that
strict liability is not. On this basis, however, large parts of the private law
of obligations—notably liability for breach of contract—would have to
be condemned as unfair; and as we saw in Chapter 4, a case can be made
in favour of strict liability in tort law. Criticisms of strict liability are
more often based on perceived anomalies generated by applying different
standards of liability to essentially similar types of case than on o bjections
Interests in One’s Person 57
to strict liability as such. Why, for instance, are people prepared to con-
template strict liability for injuries caused by defective products but not
for injuries caused by defective services (Stapleton 1994a, 323ff)?
The fact that tort liability for personal injuries is typically fault-based
means that contributory negligence is a very important defence to tort
claims for interference with interests in mind and body. But even in cases
where liability for personal injuries is, in some sense, strict (as in rela-
tion to defective products under the Consumer Protection Act 1987),
contributory negligence is usually available as a defence. The defence of
assumption of risk also finds its most important (though small) area of
operation in personal injury claims.
DIGNITARY INTERESTS
The dignitary interest best protected by tort law is reputation. Reputation

is treated as analogous to property, and liability for damage to reputa-
tion is very strict. The only thing a claimant in a defamation action has
to establish to get the action off the ground is that a statement defama-
tory of the claimant was communicated (‘published’), by the maker
of the statement or someone else, to a person other than the claimant.
The defamed person does not have to prove that the publication resulted
in damage to reputation; any and every person who publishes a defam-
atory statement has prima facie committed a tort. In the typical case,
publication will be deliberate; but liability may arise for inadvertent
publication. The maker of a defamatory statement may be liable for pub-
lication by another if the maker is vicariously liable for the torts of the
other, or authorised the publication, or intended or ought to have fore-
seen that publication.
It is a defence (called ‘justification’) to prove that the defamatory state-
ment was a reasonable inference from substantially true facts. A person
cannot complain if the truth causes them harm. The defendant has a
defence (of ‘fair comment’) if it can be proved that the statement was an
expression of opinion, that it was an honestly believed (even if unreason-
able) inference from substantially true facts, and that it concerned a ‘mat-
ter of public interest’. This defence will not succeed if the defamer acted
out of what the law regards as an improper motive (with ‘malice’, for some
reason other than contributing to public debate); but it is the defamed
who must prove improper motive. ‘Absolute privilege’ protects state-
ments made in the course of parliamentary and judicial proceedings; and
58 Torts Repackaged
qualified privilege protects statements made in situations where the maker

and the recipient have what the law considers to be legitimate interests
in the making and receiving of the statement. Qualified privilege can be
‘defeated’ if the defamed can prove malice in the making of the statement
(lack of honest belief in the truth of the statement, or making the state-
ment for a purpose other than that which the privilege protects); but
absolute privilege cannot. The defence of justification rests on the simple
principle that no one deserves to have or to retain a good reputation
based on falsehood. The other defences are designed to protect the inter-
est of citizens in knowing things that are of legitimate interest to them as
members of society.
Generally, it is no defence to a claim in defamation that the defamer
took reasonable care not to injure the reputation of the defamed. There
are two major qualifications to the general rule. One is that if the person
sued did not make the statement but only disseminated it, there will be no
liability if the disseminator did not know that the statement was defam-
atory and took reasonable care not to publish a defamatory statement
(Defamation Act 1996, section 1). Second, if the person sued took reason-
able care not to defame, and if they make an ‘offer of amends’ that the
defamed refuses to accept, the person sued can plead the m aking of
the offer as a defence to the claim (Defamation Act 1996, sections 2–4).
However, the effect of this second qualification is simply to make it easier
for an ‘innocent defendant’ to settle the claim out of court. The section
assumes that the ‘innocent’ defendant has committed tortious defamation.
The strictness of liability for defamation is controversial because it
represents a very significant intrusion on individual freedom of speech.
In modern society, freedom of speech and information is considered a
‘fundamental human right’. In traditional English tort law, by contrast,
reputation is more highly prized than freedom of speech and informa-
tion, and such protections for the latter as are recognised are embodied
in defences to a claim for defamation rather than in the definition of the
wrong of defamation. Many believe that the law of defamation unduly
protects public figures, such as politicians, from proper scrutiny by the
press who, in an open society, perform a pivotal ‘quasi-constitutional’ role
in maintaining the free flow of socially important information and views.
In some jurisdictions (in the US, for instance) the standard of liability in
defamation actions brought by public figures is much less strict than in
England (Reynolds v Times Newspapers Ltd [2001] 2 AC 127). By contrast,
some would argue that strict defamation laws are needed to protect
Property Interests 59
people, who have not chosen to put themselves into the limelight, from
the attentions of less scrupulous sections of the press. Those who argue
along such lines are also usually concerned that the law gives insuffi-
cient protection to people’s privacy. In fact (as we have already noted),
although there is no tort of ‘breach of privacy’, various other torts (such
as trespass) can be used to protect aspects of privacy.
CIVIL AND POLITICAL INTERESTS
The only such interest to which tort law gives direct and significant pro-
tection (through the tort of wrongful or false imprisonment) is personal
liberty. Deprivation of liberty against a person’s will is typically the result
of deliberate restriction of movement, but inadvertent restriction can
also attract liability. In practice, the most important defence to a claim
for deprivation of liberty is legal authority. The common (ie judge-
made) law authorises detention in the name of preserving the peace, and
an important ground of statutory authority is law enforcement. There
are also some statutory powers to detain people on medical grounds.
In the contexts of public order and law enforcement, the main basis of
authorisation (apart from court orders in the form of warrants for arrest
or orders for imprisonment) is reasonable suspicion that a ground for
detention exists. The effect of the reasonable suspicion test is to inject
an element of fault into a head of liability to which fault is essentially
irrelevant: the detainer must take reasonable steps to ensure that the sus-
picion that a ground of detention exists is well-founded. In relation to the
police, suspicion will only be unreasonable if no reasonable police officer
would have had a suspicion in the circumstances (Holgate-Mohammed
v Duke [1984] AC 437).
2. PROPERTY INTERESTS
REAL PROPERTY
As we saw in Chapter 4, in the common law of torts, liability for misap-

propriation and unauthorised exploitation of real property is typically
strict in the sense that there can be liability even if the harm-doer acted
60 Torts Repackaged
inadvertently and neither knew nor ought reasonably to have known

that the property was the harm-sufferer’s. It is no defence that the harm-
sufferer failed to take reasonable care to protect the property from the
intruders. Misappropriation of real property is actionable per se, without
proof of financial or physical damage.
The rationale for these rules is that in English law, tort performs in
relation to property what might be called a ‘vindicatory’ function or, in
other words, the function of marking the boundary between ‘what is
mine and what is yours’. What is mine is no less mine because I do not
take care of it or because you had no reason to know it was mine. In this
respect, tort law is much more concerned with the nature of the pro-
tected interest than with the nature of the interfering conduct.
More than one person may have property rights in one and the same
piece of property at the same time. Thus, tort law provides remedies not
only to dispossessed owners but also to dispossessed tenants. The owner is
protected not only against ‘squatters’ but also against ‘overstaying’ tenants.
Tenants are protected not only against dispossession by third parties but
also against dispossession by the owner during the period of the tenancy.
The common law drew a sharp distinction between the rights of tenants
(who have a property interest in the rented premises) and ‘licensees’ (who
have only a contractual interest in the premises). As we have seen, on the
whole, the common law of tort gives no protection to merely contractual
interests in real property. However, residential licensees now enjoy, by stat-
ute, many of the protections accorded to tenants against the owner; but
their position vis-a-vis third parties is still precarious.
When we come to liability for interference with the use and enjoyment
of land, the legal picture is rather different. Two heads of tort liability
are important here—trespass and nuisance. In this context, trespass is
used primarily to deal with unwanted entrants. Not all unwanted intru-
sions are necessarily tortious—for instance, the owner is assumed (in the
absence of contrary indication) to be willing to allow people, under nor-
mal circumstances, to enter the land to get to the front door of a dwelling;
and it is not an actionable trespass to fly in an aircraft over someone’s
land at a normal height even though, in theory, ownership of land carries
with it ownership of the airspace above it (Bernstein v Skyviews & General
Ltd [1978] QB 479). However, liability for unauthorised entry is strict
and actionable per se: the law gives strong protection to the owner’s right
to control entry.
Property Interests 61
Whereas trespass deals with unreasonable interference with the use

and enjoyment of land by entry, nuisance deals with interference by
things done off the land. The requirement of unreasonableness is practi-
cally equivalent to a requirement of negligence: the interference with use
and enjoyment must have been foreseeable, and it must be greater than it
is reasonable to expect the harm-sufferer to put up with. The philosophy
of the law of nuisance is mutual tolerance: ‘live and let live’. The likely cost
of preventing the interference and the social value of interfering activity
are relevant to judging reasonableness.
In the nineteenth century, the law of nuisance played an important
role in resolving conflicts between competing uses of land, particularly
industrial and non-industrial. In the twentieth century this function
was largely taken over by the statutory land-use planning system, which
aims in part to prevent incompatible, contiguous uses of land. However,
the law of nuisance still operates at the margins of the planning system
to deal particularly with problems generated by the day-to-day use of
land with which the planning system is not directly concerned, or with
‘planning mistakes’. In one case, for instance, houses for which planning
permission had been obtained were located so close to a playing field that
they became targets for stray cricket balls (Miller v Jackson [1977] QB 966).
In another, a shipping terminal, for which planning permission had
been obtained, generated far more noise and traffic than local residents
had anticipated (Allen v Gulf Oil Refining Ltd [1981] AC 1001). The law
says that if a use of land has been authorised by statute, this provides
an answer to a tort claim even if the use causes a nuisance. By contrast,
the mere fact that planning permission (administrative authorisation)
has been obtained for a particular use does not prevent that use being
an actionable nuisance. These rules illustrate that tort law is a complex
amalgam of judge-made and statutory rules.
Finally, the basic standard of liability for physical damage to, or the
destruction or loss of, real property is fault—intention or, more com-
monly, negligence. The few instances of strict liability are statutory.
CHATTELS
The basic pattern of liability rules in this context is the same as that
which applies to real property: strict liability for misappropriation and
62 Torts Repackaged
nauthorised exploitation, and fault-based liability for interference with

u
use and enjoyment, and for physical damage.
INTANGIBLE PROPERTY
This is not the place to examine in detail the rules about infringement
of the various intellectual property rights. Except in a few cases where
action cannot amount to an infringement of an intellectual property
right unless the infringer knew or ought to have known of the harm-
sufferer’s rights, liability for infringement (exploitation) of statutory
intellectual property rights is strict. Common-law (ie non-statutory)
liability in the tort of passing-off for harm suffered as a result of exploi-
tation of goodwill is quite strict.
Damage to goodwill without exploitation is actionable under the head
of ‘malicious (or ‘injurious’) falsehood’. This is a form of defamation
involving false statements reflecting on someone’s business or commer-
cial reputation as opposed to their personal reputation. However, liability
depends on proof that the harm-doer acted ‘maliciously’, which means
either that they did not honestly believe that the false statement was true,
or acted out of some improper motive, that is some motive other than
the protection of their own legitimate interests. The typical case of mali-
cious falsehood arises as between business competitors, and this prob-
ably explains why malice must be proved: otherwise healthy competition
might be unduly impeded. In the typical case, the tort is actionable per se:
damage to business reputation need not be proved.
TORT LAW AND THE PROTECTION OF PROPERTY

INTERESTS
The foregoing account shows how tort law protects four important
incidents of property: the right to possess, the right to control use and
to exploit, the right to enjoy, and the right that property should not be
damaged, destroyed or lost. The two most distinctive characteristics of
tortious protection of property interests are actionability per se and strict
liability. As we have seen, however, neither characteristic is u niversal.
Damage is often the gist of tort actions arising out of interference with
Contractual Interests 63
property interests; and where damage is the gist of the action, the standard
of liability is usually negligence or even malice, as in the tort of injurious
falsehood. Most types of actionable interference with property rights can
only be committed by positive acts, and not by omissions. This may be
explained as a trade-off against strict liability and actionability per se.
The complexity of tort law in this area reflects the complexity of our
concept of property and of the numerous social functions that property
performs. Tort law plays an important part not only in protecting peo-
ple’s interests in property but also in shaping and defining the social roles
of property: property is valuable not only as a private resource, but also
as a social institution on which the edifice of the market economy is built.
Concerning defences to tort claims for interference with property
rights, little has been said chiefly because there are few relevant defences
to the typical tort claim in this area. Contributory negligence may, of
course, provide a defence to a claim for negligent damage to property,
as may assumption of risk and illegality. Apart from consent, the only
possible defence to a claim for possession would be that the disposses-
sor had a better right to possession than the person in actual possession.
Legal authority may provide an answer to a claim for taking possession
of property, for entry to property and for nuisance, but is unlikely to be
available in other types of case. As we have seen, mistake as to the exist-
ence of the harm-sufferer’s property right is rarely an answer; nor can
the harm-doer normally plead that the interference was neither intended
nor negligent.
Consent is a pivotal idea throughout this area of the law. In many
cases, lack of consent to the interference is an element of the claim: for
instance, trespass is defined as an act unconsented to by the landowner.
An important exception is nuisance, where not only is lack of consent not
an element of the claim, but also it is no defence for the harm-doer to say
that the nuisance existed before the harm-sufferer came into proximity
with it.
3. CONTRACTUAL INTERESTS
As we saw in Chapter 4, tort law protects contractual interests from

interference by the other party to a contract and by ‘third parties’.
64 Torts Repackaged
THIRD-PARTY INTERFERENCE WITH

CONTRACTUAL RIGHTS
There are, essentially, two types of third-party interference with con-

tractual rights that tort law classifies as wrongful: inducing a party to a
contract not to perform it and disabling a party to a contract from per-
forming it. The basic difference between these two types of interference
is that the former operates through the mind of the contracting party
whereas the latter does not. Actionable inducement may take the form of
persuasion (by pointing out advantages to the contracting party in non-
performance or disadvantages in performance) or threatening the con-
tracting party with adverse consequences if they perform (intimidation).
Damage is the gist of interference with contract. Persuasion and threats
are, by their very nature, deliberate acts, whereas disablement may not,
per se, be deliberate. However, there can be no liability for interference
with contractual rights unless the interferer knew (or, perhaps, ought to
have known) of the existence of the relevant contractual provisions.
Liability is limited by the requirement of intention: the harm-sufferer
must prove that the harm-doer intended to injure.
In practice, liability for inducing breach of contract is most important
in two contexts: between market competitors, and between employers
and employees. In the former context, liability for inducement is sup-
ported by the desirability of preserving the security of transactions.
Without stability of contracts, markets could not operate properly; and
stability of contracts can be undermined just as much by inducement of
breach as by breach itself. If the law allowed as justification the mere fact
that the harm-doer would benefit in competition with the harm-sufferer
by persuading a contracting party to breach a contract with the harm-
sufferer, the whole market system would be undermined. In fact, the only
sort of justification recognised by law for inducement of breach of con-
tract by persuasion is that the harm-doer did it to protect their own legal
rights or, possibly, some public interest, which the law considers to be
‘superior’ to the contractual right of the innocent contracting party.
Between employers and employees, inducing breach of contract is,
in legal terms, the prime method by which unions organise strikes and
other forms of industrial action, and liability for such inducement is the
main basis on which employers can legally attack strikes. The law in this
area has, for the past century, been a complex amalgam of common law
and statute, the former laying down the basic rule of liability for induc-
ing breach of contract, and the latter defining an area of ‘immunity’
from liability the size of which has varied from time to time according to
changing political and social views about the desirable balance between
the interests of ‘capital’ on the one hand and of ‘labour’ on the other. In
this context more than any other, tort law has been at the forefront of
bitter arguments about the (ab)use and control of economic power in
society. Here, the link between the rights and obligations created by tort
law to regulate interactions between individuals, and large economic and
political questions about the sort of society we want to live in, could not
be clearer. (For more on this see Chapter 8).
In tort law, inducing someone not to perform a contract by threaten-
ing them is called ‘intimidation’. Intimidation (as opposed to inducement
by ‘persuasion’) is tortious only if what the harm-doer threatened to do
would be unlawful (criminal, for instance). Threatening to do something
lawful cannot be tortious. Similarly, it can be tortious to disable a per-
son from performing their contract with another only if the disabling
conduct was itself unlawful. The justification for the requirement of
unlawfulness is, perhaps, that much perfectly legitimate market activ-
ity involves intentionally inflicting harm on another. The requirement
of unlawfulness may be seen as an additional protection for competi-
tive activity. On the other hand, it is one thing to intend to force your
competitors out of business, but another to do so by inducing or causing
others to breach their contracts with your competitors.
TORT LIABILITY OF CONTRACTING PARTIES
Some breaches of contract are also actionable (‘concurrently’) as torts by

the innocent party to the contract. This is because one and the same set
of facts may contain the elements of more than one cause of action and
may amount to more than one legal wrong (see more on this in Chapter 6).
Not all breaches of contract are actionable as torts. The paradigm of a
breach of contract actionable as a tort is negligent misfeasance caus-
ing physical or financial loss. Contractual nonfeasance is less likely to
be actionable in tort because (as we have seen) nonfeasance is, in gen-
eral, less likely than misfeasance to be actionable in tort. Non-negligent
breach of contract is also less likely to be tortious because there are few
relevant grounds of strict tort liability.
66 Torts Repackaged
CONTRACTUAL OPPORTUNITIES
Contracts are an important legal vehicle for the mutually advantageous

transfer of goods and services from one person to another, and they
are the basic legal form of market activity. A corollary of the importance
of contract to the operation of a market economy is the basic principle
of ‘freedom of contract’: people should be free to make what contracts
they choose with whom they choose, or not to contract at all. For the
protection of weaker parties, this principle is much modified by statu-
tory provisions and, to a lesser extent, by common-law rules of contract
law. However, it is still the law’s starting point. The part tort law plays
in protecting contractual freedom is to provide remedies for two types
of interference with its exercise. The first is preventing someone exer-
cising their freedom to contract or, in other words, to deprive someone
of opportunities to contract. This is sometimes called ‘interference with
trade’. The second, conversely, is inducing someone to exercise their free-
dom to contract or in other words, to take an opportunity to contract.
Deprivation
The essence of competition is interference with the contractual expectan-
cies of others by luring away their customers. Extensive tort liability for
depriving others of contractual opportunities could undermine compe-
tition to an unacceptable extent. Tort law reflects ideas about the sorts
of competitive activities that are fair or, by contrast, unfair. The other
main practical area of operation of tort rules about deprivation of con-
tracting opportunities is that of trade disputes between employees and
employers. Besides inducing breach of contract, deprivation of contrac-
tual opportunities is a typical form of industrial action.
Three torts are mainly relevant here: conspiracy, intimidation and
causing loss by unlawful means (or, as I will call it, ‘unlawful interference
with trade’). Three devices are used to limit the scope of these torts. First,
interference can be tortious only if the harm-doer intended to cause
damage to the harm-sufferer by depriving them of contractual opportu-
nities. Negligent interference with opportunities to contract is generally
not tortious. This rule is designed to preserve competition which, by its
very nature, often involves such conduct. In non-competitive contexts,
the rule is probably based on the idea that people should take steps to
protect themselves from negligent, non-competitive interference with

their trading interests.
Second, it is generally not tortious to deprive another of contractual
opportunities by conduct (or ‘means’) not intrinsically unlawful (not
criminal, for instance). The only exception is the form of conspiracy called
‘simple conspiracy’. A conspiracy is, essentially, an agreement. There are
two forms of tortious conspiracy: ‘simple conspiracy’, which does not
involve the use of unlawful means, and ‘unlawful means conspiracy’
which (obviously) does. The traditional view of conspiracy is that the
element of agreement or combination is important in justifying the
imposition of liability. This explains why an agreement to do a lawful
act with the intention of injuring another’s trade may be tortious even
when such conduct by one person acting alone would not be. Liability for
simple conspiracy is now widely thought to be unfair. The requirement
of unlawfulness is considered crucially important in preventing the legal
concept of ‘unfair competition’ getting too far out of step with ideas of
commercial morality, and unduly restricting competition.
A third device used to limit the scope of these torts is the defence of
justification. The defence is most important in relation to simple con-
spiracy—in this context, commercial self-interest justifies agreements to
injure another. Where the means used were unlawful, commercial self-
interest would be unlikely to provide a defence. Indeed, in general, the
use of unlawful means would typically be difficult to justify.
Besides common-law torts, there are various important statutory
grounds of liability for deprivation of opportunities to contract. For
example, one of the main aims of the Sex Discrimination Act 1975 and the
Race Relations Act 1976 is to protect against deprivation of employment
or other contracting opportunities on grounds of sex or race. In contrast
to the position under the common law, liability is strict; but the conduct
proscribed by these statutes is narrowly defined. There are various other
statutory causes of action, directed at anti-competitive practices in vari-
ous sectors of the economy, involving refusals to contract with certain
individuals or refusals to contract except on onerous terms. However, the
common law and statutory torts play only a very minor part in protect-
ing market participants from unfair practices. Because of the large-scale
nature of much anti-competitive activity, government regulation and the
criminal law are thought to be more effective than individual tort actions
in controlling such activity. For the same reason, individual tort actions
68 Torts Repackaged
in this area would often pose large economic questions about the opera-
tion of the market that courts think better and more properly dealt with
by non-judicial governmental bodies.
Inducement of Contracting
The essence of this species of wrong is inducing a person to enter a con-
tract by making a false statement about how financially beneficial the
contract is likely to be. The contract may, but need not, be with the maker
of the statement. There are two relevant common-law torts: deceit and
negligent misstatement. There is no strict common-law tort liability for
false statements except for defamatory statements. Deceit (or ‘fraud’)
involves making a false statement knowing it to be false, or not caring
whether it is true or false, with the intention of inducing a person to rely
on it to their detriment.
Liability for negligent misstatement arises only if the harm-doer
‘assumed responsibility’ to the harm-sufferer for the truth of the state-
ment (Hedley Byrne v Heller [1964] AC 465). This opaque concept is
designed to mark out those cases in which it is reasonable to allow a per-
son to rely on the accuracy of another’s statement without taking inde-
pendent advice. In cases where the maker of the statement is the other
party to the contract, the law will treat the former as having assumed
responsibility. In other cases, there is no general principle that deter-
mines when someone will be treated as having assumed responsibility
for their statements. However, it has been held, for instance, that an audi-
tor who makes negligent misstatements about the financial position of a
company is not liable in tort to purchasers of shares in the company who
rely on the auditor’s report (Caparo Plc v Dickman [1990] 2 AC 605).
The concept of assumption of responsibility suggests a distinction
between obligations imposed on a person and obligations voluntarily
undertaken by that person. There is a strong underlying assumption in
much discussion of tort law that whereas it is acceptable to impose on
people, regardless of their will, obligations to avoid causing physical inju-
ries to persons and property, the law should recognise an obligation to
avoid causing financial harm only where a person has, in some sense,
taken it upon themselves by deliberate conduct (such as by making a
contract). This is because, in general, we expect people to do more to
protect their own financial interests than their physical interests.
However, the words ‘in general’ are of great significance. Tort law imposes
Non-Contractual Opportunities 69
various obligations designed to protect financial interests in property.

For instance, unauthorised exploitation of property can be tortious not
because of any obligation undertaken by the exploiter but because, on the
contrary, the exploiter did not contract with the owner for the use of the
property. What’s more, because assumption of responsibility is judged
objectively, the concept normally signals imposition of a new obligation
rather than reinforcement of a voluntarily-accepted obligation.
In addition to the common-law heads of tort liability, there are various
statutory heads of tort liability for negligent misstatement under statutes
such as the Misrepresentation Act 1967 (section 2(1)) and the Financial
Services Act 1986.
4. NON-CONTRACTUAL OPPORTUNITIES
A non-contractual opportunity is a chance to secure financial gains by

means other than the making of an advantageous contract. For example
(as we noted in Chapter 4), until the testator dies, a named beneficiary
under a will has a non-contractual opportunity to receive a legacy. If,
because of negligence on the part of a lawyer, the intended beneficiary
fails to receive the legacy, the lawyer may be liable for the value of the
expected gift. The technical explanation of the liability is that the lawyer
assumes responsibility to the beneficiary (even if the lawyer has no con-
tact with the beneficiary and even if, at the time of the alleged negligence,
the beneficiary knew nothing either of the testator, the will or the lawyer).
Underlying this technicality is the idea that once the testator has died,
nothing can be done to perfect the beneficiary’s intended claim on the
testator’s estate; and since the beneficiary could not reasonably have been
expected to do anything to protect his or her own financial interest, the
negligent lawyer should pay.
In practice, the most important source of protection for non-contractual
opportunities in tort law is the Fatal Accidents Act 1976. Where a person’s
death was the result of a tort, a ‘fatal accident’ claim may be brought
under the Act on behalf of any of a specified list of ‘dependants’ of the
deceased. The prime purpose of such a claim is to compensate intimates
of the deceased for loss of (actual and) expected financial support. In
general, tort law does not compensate a person for ‘relational’ financial
harm flowing from injuries to another (as opposed to the other’s death)
70 Torts Repackaged
or from damage to property owned by another. Suppose, for instance,

that a vessel negligently collides with a public bridge over a river that
divides two parts of a city, putting it out of action and causing financial
loss to people who regularly use it. Tort law does not protect the users
from such financial harm
Tort law’s unwillingness to compensate for relational financial harm is
often said to arise from a fear of floods of actions by people with a more-
or-less remote financial stake in the other’s activities, and a desire not to
impose ‘unfair burdens’ on potential harm-doers. In modern society, we
might say, the autonomy and separate identity of individuals is highly-
prized. If I injure someone, my responsibility is to that person above all,
and to those members of the person’s immediate family who are most
closely affected. The web of financial interdependencies in society is large
and complex, but once we get beyond the centre of the web, people are
expected to take steps to protect their own financial interests. The list of
classes of claimants in the Fatal Accidents Act (based on some idea of
family intimacy) represents the law’s attempt to describe what is meant
by ‘the centre of the web’.
5. TRADE VALUES
The term ‘trade values’ refers to the interest in exploiting the fruits of one’s
skill and effort for financial gain. One way in which the law protects trade
values is by creating property rights in them (‘intellectual property’) and
making interference with such rights tortious. Most intellectual property
rights and their associated protective torts are statutory. A person may
also be able to protect their trade values by contract—franchising and
‘character merchandising’ are common examples. For the ‘creator’, one
of the main advantages of the property technique over the contractual
is that property rights can be enforced against people generally, whereas
contractual rights can only be enforced against those who have made
contracts for the exploitation of the trade value.
It is often suggested that the common law should recognise a general
principle of liability for unauthorised exploitation of trade values—or,
in a long-established pithy phrase, for ‘reaping without sowing’. English
courts have always resisted the adoption of so general a principle of liabil-
ity for ‘unfair competition’, essentially on the ground that it is best left to
the legislature to decide how far and by what means the law should protect
Financial Harm 71
the interests of creators in exploiting their creative powers for financial

gain. The only important judicial activity in this area is found in the law
of passing-off. The essence of passing-off, as developed in the nineteenth
century, was causing loss to another by misrepresenting your own goods
or services to be those of another person, thus confusing consumers into
buying your own goods or services instead of the other person’s. Courts
have frequently been asked to extend passing-off to cases involving nei-
ther misrepresentation nor confusion, and they have made some moves
in this direction in recent years. However, the tort of passing-off is still a
long way from embodying the principle against reaping without sowing.
6. FINANCIAL HARM
Finally, we must examine cases in which the form of the complaint is

simply that as a result of the harm-doer’s conduct, the harm-sufferer is
financially worse-off. Some grounds of tort liability for intentional con-
duct, such as malicious prosecution, abuse of legal process and liability
for misfeasance in public office, may provide a basis for such a complaint.
A claim that as a result of a misstatement by the harm-doer (whether
fraudulent or negligent) the harm-sufferer gave money away to a third
party, would fall into this category.
As we saw earlier, tort law is reluctant to compensate for ‘relational’
financial harm. In some cases of relational harm there may be a contract
between the harm-sufferer and the injured party. For instance, a person
may suffer financial harm as a result of damage to a piece of property
that the harm-sufferer rents from the injured party. A person may suf-
fer non-contractual relational harm where, for instance, a citizen suffers
financially as a result of closure of a public bridge after it is damaged by
negligent navigation of a vessel by the harm-doer. In general, people are
expected to protect themselves from relational harm. In the contractual
case, such protection might take the form of a provision in the contract.
In the non-contractual case, it might take the form of insurance.
A person may suffer financial harm as a result of paying too much
(ie more than their value) for substandard services, or shoddy goods or
premises. The general rule of common law is that such loss is recoverable
in a tort action for negligence only if the harm-doer (the provider of the
services or the vendor of the goods) ‘assumed responsibility’ for the qual-
ity of the services or goods. We have already observed the opaqueness
72 Torts Repackaged
of this criterion of liability, and it is necessary to say a little more about

when a defendant might be treated as having assumed responsibility.
In the first place, it seems that the negligent provider of a financial
service is more likely to be held to have assumed responsibility than the
negligent builder of premises or producer of goods. Indeed, there is much
authority for the proposition that under normal circumstances, builders
and manufacturers do not assume responsibility to purchasers of their
output for the quality of that output, and so are not normally liable to
them in tort for purely financial loss flowing from the defectiveness of the
output. Second, whether an assumption of responsibility will be found
depends partly on a judgment of the court about whether it would be
reasonable to expect the harm-sufferer to protect his or her own financial
interests. In one case, for example, it was held that a ship surveyor, who
negligently certified for the owner that a ship was seaworthy, was not
liable in tort, to the owner of cargo being carried on the ship, for financial
loss suffered when the ship sank and the cargo was lost (Marc Rich & Co
AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] AC 211). The
underlying rationale of the decision appears to be that it was reason-
able to expect the cargo owner, which was a commercial entity, to protect
itself from such financial loss by taking out insurance.
The decision was also probably influenced by the fact that the surveyor
was not the immediate cause of the loss of the cargo. The immediate
cause was that an unseaworthy ship went to sea. The surveyor’s negligent
act merely failed to prevent the loss of the cargo. It might be said that
the person primarily responsible for maintaining the ship in a seaworthy
condition and for the decision to put to sea was the ship owner; and that
the surveyor was only secondarily responsible for the condition of the
ship and the decision to sail. Courts are less willing to hold that a party,
secondarily responsible in this causal sense, has ‘assumed responsibility’
for economic loss than to hold that a primarily responsible party has.
Courts are also extremely reluctant to impose tort liability on a harm-
doer for failure to protect another from purely financial loss unless the
harm-doer has been paid to provide protection. Even if there is a con-
tract between the harm-sufferer and the harm-doer, liability for failure to
protect a person from financial loss may only be imposed if the contract
expressly requires the harm-doer to provide protection. Put another way,
the most the law will normally do is to reinforce an undertaking to pro-
vide protection based on deliberate conduct of the harm-doer creating
the undertaking.
6
Wrongs
KI 4: Torts are only one species of legal wrongs
It will be clear from the last two chapters—in which the catalogue of
torts has been unpacked and repackaged in terms of protected interests
and harmful conduct—that torts are only one type of legal wrong. Other
types include crimes, breaches of contract, and so on. This raises two
questions that this chapter aims to answer. First, what is the relationship
between torts and other legal wrongs? And second, is there anything dis-
tinctive about torts as a species of legal wrong?
1. THE PLACE OF TORT LAW IN THE LEGAL

UNIVERSE
PRIVATE LAW AND PUBLIC LAW
Lawyers divide the law into various categories. One of the major d ivisions
is between private law and public law. Private law is concerned basically
with relations between ‘private’ individuals (including corporations).
Public law is concerned with relations between private individuals (‘the
governed’), and government (or ‘the governors’), as well as between
government entities. Constitutional law and administrative law are two
categories within public law.
Tort law is part of private law. It was developed primarily to regulate
social interactions between ordinary individuals. However, it also applies
to interactions between government and the governed, and even between
government entities. This reflects the original concept of government in
74 Wrongs
England according to which government is not a distinct legal entity in

its own right but merely a collection of individuals (‘citizens in uniform’:
Gardner 2012b) with distinctive powers and functions. The original gov-
ernors were the Monarch and Crown officials. Today, the governors are,
effectively, the Prime Minister and Ministers of State. Of course, in mod-
ern times, the distinction between government officials and ordinary
citizens is clearly marked and governments are understood to have
‘public’ functions. The differences between governors and governed
make application of ‘private’ tort law to relations between citizens and
government one of the most difficult and complex topics in tort law.
Despite its importance, considerations of space prevent further discus-
sion in this book.
THE LAW OF INTERESTS AND THE LAW

OF OBLIGATIONS
Another basic division within private law is between the ‘law of inter-
ests’ (my term) and the ‘law of obligations’ (a term in common use).
By ‘the law of interests’ I mean law that creates the various types of inter-
ests discussed in Chapter 4 and other legally protected interests. The law
of obligations is concerned with the protection of legal interests. Tort
law is largely a law of obligations. It does not typically create the inter-
ests it protects. For instance, property interests are created by property
law, which is mainly a law of interests. Contractual interests are created
by contract law, which is also concerned with protection of the interests
it creates. Interests in personal health and safety are usually thought of
as existing independently of law (as ‘human rights’ if you like), which
recognises rather than creates them.
The law of obligations is normally divided into the categories of tort
law, contract law, the law of restitution (or ‘unjust enrichment’) and the
law of equity (including the law of trusts). These categories provide a
convenient way of grouping together causes of action that are related to
each other in some way. Like tort law, each of these categories could be
unpacked and repackaged in terms of protected interests and harmful
conduct. That is a task for others. Our interest in categories of the law of
obligations is to find out what we can learn about tort law and its distinc-
tiveness by looking at its relationship to these other categories.
The Place of Tort Law in the Legal Universe 75
TORT LAW AND CONTRACT LAW
The law of contract protects financial interests in the form of contrac-

tual rights and contractual opportunities. It also protects against bodily
injury and death, mental injury and, in certain circumstances, anxiety
and inconvenience; and it protects against physical damage to tangible
property. The standards of liability recognised in contract law are neg-
ligence and strict liability. Contract law does not recognise intentional
conduct as an independent form of wrongdoing—in other words, it
creates no obligations that can only be breached intentionally.
With very few exceptions, contract law provides protection only to the
parties to a contract, and not to third parties affected by the contract.
In other words, contract law mainly protects parties who are already in
a contractual relationship with one another. We have seen that tort law
also sometimes protects the interests of parties who are in a contractual
relationship with one another: breach of contract can sometimes also
amount to a tort against the other party to the contract. In tort law, the
fact that the harm-doer and the harm-sufferer are in some sort of rel-
evant non-contractual relationship such as parent and child, or prisoner
and gaoler, or occupier of land and visitor, does not, of course, disen-
title the harm-sufferer from tort law’s protection. For instance, a child
may sue a parent who negligently causes bodily injury to the child.
A prisoner may sue a gaoler, and a visitor may sue an occupier, in tort,
for negligently inflicting personal injury, for instance. Indeed, tort law
will sometimes protect interests (particularly financial interests) only if
the harm-sufferer and the harm-doer were in a relevant relationship at
the time of the alleged tort. The concept of ‘assumption of responsibility’
was invented precisely to justify imposition of tort liability by establish-
ing a relationship between the harm-doer and the harm-sufferer created
in advance of the alleged tort.
However, one of the most distinctive features of the obligations that
tort law imposes, as compared with those typically imposed by con-
tract law, is that the harm-doer and the harm-sufferer need normally
have been in no relevant relationship at the time of the alleged tort.
The most common type of tort claim is one arising out of a road
accident. In the typical road accident, the harm-sufferer is a ‘stranger’ to
the harm-doer; but this lack of relationship is no bar to a claim in tort
by the harm-sufferer.
76 Wrongs
For a long time, harm-sufferers have attempted to exploit this differ-

ence between tort obligations and contractual obligations to overcome
the lack of a pre-existing relationship with a harm-doer. Donoghue
v Stevenson [1932] AC 562 established that the consumer of a defective
product could sue the manufacturer in tort for personal injury caused by
use of the product even though the consumer was completely unknown
to the manufacturer, had no contractual relationship with the manu-
facturer and, indeed, had a contractual relationship with the café owner
who sold the consumer the allegedly defective ginger beer. The court was
not prepared to deny the harm-sufferer a tort claim against the manu-
facturer on the basis that she had a contractual relationship with the café
owner and could have sued him in contract. By contrast, tort law is very
reluctant to protect financial interests in this way. Typically in such cases,
if a harm-sufferer has a relevant contractual relationship with a party
other than the harm-doer, tort law will not protect their interest against
interference by the harm-doer.
Another distinctive difference between the way contract law and tort
law respectively protect interests is that contract law, unlike tort law,
commonly imposes strict liability for nonfeasance. Another way of put-
ting this is to say that failure to bring about a specified state of affairs
may be a breach of contract even though the failure was not the result
of faulty conduct; but cannot be a tort. In the law of contract a person
may be liable simply because a state of affairs does not materialise, full
stop. Furthermore, the law of tort is more-or-less reluctant to impose
liability for negligent nonfeasance or, in other words, negligent failure to
prevent injury or loss occurring (as opposed to causing injury or loss).
By contrast, a contract is a means by which a legally enforceable obliga-
tion to take care to protect another from injury or loss may be created.
A main distinguishing feature of the law of contract, compared with the
law of tort, is a greater willingness to impose strict and negligence-based
liability for nonfeasance. In other words, contract provides a technique
for creating legally enforceable obligations of positive action, both strict
obligations and obligations to take care.
One way of explaining the relationship between tort law and contract
law is to say that tort law provides a basic measure of legal protection for
a wide range of interests. If a party seeks legal protection for an interest
that tort law does not protect, or protection for an interest that tort law
does protect, greater than that provided by tort law, contract may provide
a technique for securing such protection. Put slightly differently, it may
be possible to ‘buy’ protection greater than tort law provides by entering

a contract. The possibility, by contract, of creating strict obligations of
positive action is what makes it the prime legal mechanism for wealth
creation and the productive exchange of resources.
TORT LAW AND THE LAW OF EQUITY
Historically there was a deep chasm between the common law (devel-
oped by the common-law courts), of which the law of tort was a part,
and the law of trusts and equitable obligations (developed by the courts
of Chancery, or ‘Equity’). As we noted previously, the distinction between
‘common law’ and ‘equity’ was a function of the fact that there were two
separate sets of courts. Chancery started out as a mechanism through
which citizens could petition the Monarch (through the Lord Chancellor)
to reverse decisions of the Monarch’s judges that they considered unjust—
hence, the law that Chancery applied came to be called ‘equity’. Although
the institutional division between common-law courts and equity
courts was effectively abolished in the nineteenth century, the distinc-
tion between rules and principles of ‘law’, developed by the common-law
courts, and rules and principles of ‘equity’ (developed by the Chancery
Court) lingers on and has significant effects on tort law, which was devel-
oped by the common-law courts. Amongst the concepts developed ‘in
Chancery’ that the common-law courts did not make use of, three stand
out as particularly important for understanding tort law. They are ‘equi-
table property’, ‘fiduciary obligation’ and ‘unconscionability’.
Equitable Property Interests

The term ‘equitable property’ describes the interest of the beneficiary
under a trust. The trust is a technique by which obligations can be
imposed on the owner of (tangible or intangible) property (the ‘trustee’)
to use that property for the benefit of another (‘the beneficiary’). The
beneficiary’s rights are enforceable not only against the trustee but also
against certain third parties who acquire the trust property. The basic
function of equitable property rights is different from the function of
what may be called ‘common-law’ property interests such as are pro-
tected by the torts of trespass and conversion. The basic function of
common-law property rights is to allocate assets to individuals and
78 Wrongs
distribute resources in society—to determine ‘what is yours and what is

mine’. The basic function of equitable property rights is to control the
way in which common-law property is used. A person who has common-
law rights over property must exercise those rights for the benefit of the
beneficiary of the trust rather than for their own benefit.
Traditionally, liability for interference with common-law property
rights was conceptualised as common-law tort liability, and liability for
interference with equitable property rights was conceptualised as equita-
ble liability. In other words, whereas the law of tort was the main source of
legal protection for common-law property rights (including the common-
law property rights of trustees), it was not a source of protection for
equitable property rights. This was a result of the jurisdictional divide
between the common law and the equity courts. Nevertheless, most of
the building blocks of equitable liability for breach of trust by trustees,
and for interference with the beneficiary’s interests by third parties, are
present in tort law. Depending on the nature of the breach, a trustee’s lia-
bility is either strict or negligence-based; and when it is negligence-based,
the standard of reasonable conduct is in some circumstances ‘ordinary
negligence’ and in others ‘extraordinary negligence’ (see page 43 above).
The liability of third parties is similarly based on the concepts of deliber-
ate, intentional and reckless conduct which, as we have seen, are also used
in tort law. The distinctiveness of the equitable wrongs of breach of trust
and interference with trust rests in the types of interest protected, namely
the interest of one person in the use of property belonging to another.
However, it is ‘historical accident’ that this type of interest in property is
not protected by tort law while others are. Breach of trust and interfer-
ence with trust are, effectively, (equitable) torts.
Fiduciary Obligations
The essential idea underlying the trust is that one person (the trustee)
must use property for the benefit of another and not for their own ben-
efit. This same idea underlies the second of the distinctive features of
equity law, namely fiduciary obligations. Trustees are fiduciaries, but not
all fiduciaries are trustees. A person may be under an obligation to act
for the benefit of another (the ‘principal’) even if ‘the fiduciary’ owns no
property in which the principal has an interest. For instance, a solicitor
is in a fiduciary relationship with the client. In the capacity of solicitor,
the solicitor must act for the benefit of the client and not for his or her
own benefit. If a fiduciary makes a gain by improperly exploiting their

fiduciary position, the fiduciary must surrender that gain to the person
for whose benefit the fiduciary ought to have acted. The fiduciary’s obli-
gation is strict and is designed to prevent the exploitation of conflicts of
interest, even if innocent. It sits alongside the contractual and tortious
obligations of the lawyer to the client.
Fiduciary obligations are different from any obligation imposed by tort
law. Generally, tort law does not require people to act for the benefit of
others and to ignore their own interests, but only to avoid causing harm
to others. The only basis on which tort law imposes strict liability for
gains is exploitation of another’s property without consent. The liability
of a trustee to a beneficiary for exploiting trust property for the trustee’s
own benefit is like this type of tort liability. However, the idea of fiduci-
ary obligation can be used to impose property-independent obligations
to act for the benefit of another. Strict, property-independent obligations
to act for the benefit of another are a distinctive product of equity.
Nevertheless, it is, once again, merely a ‘product of history’ that such
obligations were invented ‘in Chancery’ and not ‘at common law’.
Unconscionable Conduct
The Chancery Court, it is commonly said, was a ‘court of conscience’.
This did not mean that equitable liability was always based on ‘uncon-
scionable conduct’. Indeed, as we have seen, the equitable liability of trus-
tees and fiduciaries may be strict (or negligence-based). What it did mean
was that Chancery courts were sometimes prepared to give remedies for
types of ‘shady’ conduct that the common-law courts did not recognise
as wrong. For instance, whereas tort law recognises as ‘fraudulent’ the act
of knowingly making a false statement with the intention that another
should rely on it, equity would recognise as ‘fraudulent’ any conduct that
could, in a much broader sense, be called ‘unconscionable’. ‘Unconscion-
ability’, like ‘negligence’, is a standard of conduct rather than a frame of
mind. Negligence is failure to take reasonable care not to harm others
by pursuing one’s own interests. Unconscionability involves promoting
one’s own interests at the unreasonable expense of another. In general,
tort law goes no further than requiring people not to harm others for
the sake of their own interests, whereas equity will require people not to
advance their own interests at the expense of others or, in other words,
not to take unfair advantage of others.
80 Wrongs
In English law, these two different ethical standards—do not harm

others and do not take advantage of others—are identified with two
different bodies of law: common law and equity respectively. Integrating
these two, historically-distinct bodies of law would involve working out
an acceptable relationship between legitimate self-seekingness (limited
by a duty not to harm) and the proper demands of altruism (expressed in
the idea that one should not take unfair advantage of others).
TORT LAW AND THE LAW OF RESTITUTION
The law of restitution (or ‘unjust enrichment’) is concerned with gains

wrongfully received as opposed to harm wrongfully inflicted. To a limited
extent, tort law is concerned about unjust enrichment. Most importantly
(as already noted), tort law sometimes recognises gains made by exploit-
ing another’s property as wrongful regardless of whether any harm was
inflicted on the property-owner in the process. For instance, a person
who ‘converts’ another’s chattel by using it for their own purposes and to
their own benefit may be required to ‘disgorge’ the gains made by using
the property even if the property was in no way harmed by the use, even
if the owner would not have made use of the property if the gain-maker
had not, and even if the user honestly and reasonably believed the prop-
erty to be their own. This is strict tort liability for making gains out of
another’s property.
The law of restitution goes even further than this. In certain circum-
stances, it will require one person to return (or ‘restore’) to another per-
son something handed over by the other in the mistaken belief that they
had an obligation to hand it over, even if the recipient did nothing to
induce the mistaken belief and took no part in the transfer. Suppose,
for instance, that unbeknownst to D, C mistakenly makes an electronic
transfer of funds to D’s bank account. In this type of case, the trigger of
the obligation to restore is not receipt of the payment by D: D was not in
any sense responsible for the making of the payment and could not have
done anything to prevent the payment being made. If D is to be required
to restore the payment it can only be on the basis that once D knows that
the payment was made by mistake, it would be unfair of D to retain it,
unless D has ‘changed position’ since receiving the payment (but before
learning of the mistake) in such a way as to make it unfair to require res-
toration. In such a case, the law steps in, despite the fact that D has done
The Distinctiveness of Tort Law 81
nothing wrong and, maybe, has done nothing relevant at all. D has done
no harm to C and made no gain by exploiting C or C’s property.
Here, then, we have a legal obligation and liability that would seem
truly out of place in a tort law book. If there is one thing that all torts
have in common it is that they are ‘wrongs’. Of course, this does not dis-
tinguish torts from other legal wrongs such as breaches of contract and
breaches of trust—which leaves us with the question of whether there is
anything distinctive about tort law?
2. THE DISTINCTIVENESS OF TORT LAW
In fact, the distinctiveness, such as it is, of tort law within the category
of private law seems to lie mostly in the interests which it protects.
The law of torts is the predominant source of legal protection for inter-
ests in the person. Tort law is also the main source of legal protection
for common-law (as opposed to equitable) property interests, for con-
tractual opportunities and for reputation. It is true, of course, that these
interests can also be protected by contract law; but tort law protects them
in their own right and for their own sake, not because of an agreement
to protect them. Perhaps the most characteristic feature of tort law is its
concern to protect people against wrongdoing by ‘strangers’ with whom
they have no relevant relationship at the time of the wrong. Tort law
sometimes requires such a relationship, but only exceptionally. Ironically,
the word that Lord Atkin used (in Donoghue v Stevenson [1932] AC 562)
to convey tort law’s concern with strangers was ‘neighbour’; but he used
this word to refer to all those around us who are potentially affected by
our wrongful conduct: my neighbour is anyone whom I should avoid
wronging, even complete strangers. This characteristic feature helps to
explain tort law’s apparent lack of unity: there are many ways in which
we can wrong our neighbours, and this is reflected in the diversity and
variety of tort law and torts.
This characteristic of tort law helps us to understand why it began
to outgrow the confines of the formulary system many years before
that system was abolished. The birth of the modern law of torts can be
traced to the late eighteenth century and the beginnings of the I ndustrial
Revolution. One result of industrialisation was to increase the size of com-
munities and contact groups. This happened as a result of urbanisation
82 Wrongs
and the invention of new means of transport and communication that

enabled people, goods and information to travel further and faster
than ever before. Urbanisation increased social anonymity and brought
people together into much larger and more complex ‘neighbourhoods’
(in Lord Atkin’s sense). At the same time, faster means of transport and
myriad new forms of powered machinery greatly increased the physical
and other risks associated with living in these larger neighbourhoods.
These processes alert us to two basic features of law: it is both a social and
an evolutionary phenomenon. There is a two-way interaction between
law and social life, each affecting the other in complex ways. Law evolves
by adapting to social change at the same time as preserving sufficient
continuity to hold societies together through times of rapid change. Parts
of what we now think of as tort law existed long before the Industrial
Revolution, but it is the character of being a law for ‘neighbourhoods of
strangers’ that makes modern tort law distinctive.
And things go on changing. For instance, during the course of the
twentieth century, tort law reflected and adapted to the invention of the
internal combustion engine and the motor car just as in the nineteenth
it adapted to the advent of steam railways and the ecology of the factory.
In the West, the late twentieth century witnessed the beginnings of the
Information Revolution; and tort law has reflected this change. As much
industrial production has moved to the Global South, tort law has come
to play a much lesser role than previously in protecting the physical inter-
ests of industrial workers, while dramatic increases in travel and mobility
have brought its role in dealing with traffic accidents even more to the
fore. And just as (statutory) tort law adapted, for instance, to the inven-
tion of the printing press by creating intellectual property rights such as
copyright, so at the beginning of the twenty-first century tort law will
have to adapt to the digital economy.
Much scholarly work has been done on the history of tort law and
the symbiotic interaction between legal doctrine and social change, espe-
cially during the nineteenth century; but the social history of English tort
law remains largely unwritten. The story will necessarily be complex if it
is to make sense of the law in the books in the light of changing social
needs, political structures, judicial practice and moral values, and their
mutual interactions. It is certainly no exaggeration to say that by under-
standing tort law ‘in the round’ as a social and historical phenomenon we
understand something of what it means to be human. This is one very
good reason for studying tort law in all its richness and diversity.
7
Out and About with Tort Law
KI 5: Tort law is rarely enforced
1. CONFORMITY, IMPLEMENTATION

AND ENFORCEMENT
To see the truth contained in this key idea it will help to draw two
distinctions: between conforming to and complying with tort law

(doctrine); and between implementing and enforcing tort law (doctrine).
CONFORMITY AND COMPLIANCE
From the pages of statutes, law reports and textbooks, tort law addresses
its intended audience(s) in a monologue. Otherwise, it is inert. Like law
generally, tort law addresses at least two distinct audiences: it speaks to all
of us as its subjects, and it speaks to the group of officials and institutions
involved in delivering the remedies that tort law provides for wrongful
interference with protected interests.
Let’s think about tort law’s subjects first. Tort law speaks from the
pages of the law books. Most of tort law’s subjects never read the law
books. Some—especially commercial entities—are advised about what
the books say by lawyers who do read them. Newspaper publishers, for
instance, may have in-house lawyers to consult about the tort law of defa-
mation. But most people know little about tort law. They would probably
be amazed to learn how much tort law there actually is, and how rel-
evant it is to their everyday lives. At the same time, however, many people
would not be so surprised when they heard about what tort law says.
They would probably consider most of the obligations it imposes quite
84 Out and About with Tort Law
reasonable—‘common-sense morality’, even. There is a feedback loop

between tort law and prevalent views in society about right and wrong.
Many legal norms are imported into the law from other social normative
systems, and when law adds to or departs from prevalent social views it
tends to seep into, and supplement or modify, those other social norma-
tive systems. Most people, most of the time, are inclined to do what the
tort law requires not because (they know that) the law requires it but
because their own value systems require it. This, we might think, is the
only basis on which it is fair to say that ‘ignorance of the law is no excuse’
(Goodin 2010).
Of course, torts are not rare events. For instance, each year in England
there are about one million successful, recorded personal-injury tort
claims mostly arising out of road accidents. Intentional physical violence
is one of the most common forms of recorded criminality; and much
intentional physical violence is also tortious. Given tort law’s stringent
understanding of defamation, there is no doubt a lot of it about. Still, it is
probably also a fair guess that most people, most of the time, aim to drive
carefully; and even when they are negligent in the tortious sense, their
carelessness rarely causes accidents. Most people rarely, if ever, inten-
tionally do physical violence to others or knowingly commit actionable
defamation. Let’s say that when people behave in the way that tort law
requires, they conform to tort law; and let’s speculate that most people
conform to tort law most of the time. Conformity is all the law requires. It
does not demand compliance in the sense of doing what the law requires
because the law requires it. It is satisfied with conformity.
IMPLEMENTATION AND ENFORCEMENT
Now let’s turn to the other audience addressed by tort law: officials and
institutions involved in providing remedies for torts when subjects fail to
conform. When we think of remedying torts we tend to conjure up courts
in our mind. However, courts are very rarely directly involved in remedy-
ing torts. For instance, less than one per cent of the one million or so tort
claims per year ever get anywhere near a court. There is a court hearing
in only a very small number of cases, and in most, court proceedings are
not even commenced. What is distinctive about the way courts process
tort claims is that they can make orders (to pay money, for instance) that
are ultimately enforceable by the power of the state—by ‘sending in the
Liability Insurance 85
sheriff’, for instance. Courts, in short, can ‘enforce’ tort law by making
‘remedial orders’ enforceable by legal officials.
Tort law rarely needs to be enforced in this way. Remedies are available
only against people who fail to conform to tort law’s demands. But it turns
out that most non-conformers do not have to be forced by the power
of the state to remedy their torts. Instead, the typical non-conformer
against whom a tort claim is made agrees with the harm-sufferer to
remedy the tort, and complies with the agreement. The process of mak-
ing such agreements between tort claimants and tort defendants is
usually referred to as ‘settlement out of court’. Most tort claims are set-
tled out of court by the making of a legal contract between the parties.
Cases that end up in court are those in which the parties, for one reason
or another, cannot agree on settlement terms. Typically, settlement con-
tracts do not need to be, and are not, scrutinised or approved by a court.
Part of the explanation for this initially surprising state of affairs is
that ultimately, legal contracts are enforceable by the power of the state.
For instance, a person who fails to pay money owed under a contract can
be ordered to pay the money by a court, and that order will be enforce-
able. In fact, however, settlement contracts in tort cases rarely need to be
enforced in this way. Instead, we may say, when tort cases are settled out
of court, tort law is typically implemented rather than enforced; and the
main institutions of implementation are not courts but insurance com-
panies. This is because of the widespread availability of liability insur-
ance, which is central to the operation of tort law, especially in relation to
tort claims for personal injury. In this and the following Chapters we will
focus on personal-injury claims because in practice, they form the largest
and most significant category of cases in which tort law is implemented
and enforced. Remember, however, that one of the main messages of
KI 3 is that tort law protects a diverse range of interests of which the
interest in personal health and safety is only one. The way tort law pro-
tects these other interests in practice also deserves (but has generally not
received) analysis and investigation.
2. LIABILITY INSURANCE
As its name implies, liability insurance protects against the risk

of being held liable to pay damages for a tort or other legal wrong.
Liability insurance was first used in the shipping industry and was
well-developed in that context by the mid-nineteenth century. The cata-
lyst for development of a market in insurance against the risk of liability
for personal injury was provided not by developments in tort law but
by the enactment, in the late-nineteenth century, of legislation imposing
strict statutory obligations on employers to compensate workers injured
on the job (‘workmen’s compensation’, as it was originally called) designed
to overcome defects in the common law of employers’ liability (tort) law.
The fledgling liability insurance industry received a significant boost
from the development of the motorcar in the early-twentieth century.
By the 1920s, road accidents had become such a social problem that in
1930, legislation was enacted making it compulsory for users of motor
vehicles on public roads to take out liability insurance covering personal
injuries caused to other road users. It is difficult to overestimate the
significance of the introduction of compulsory liability insurance for the
implementation and enforcement of tort doctrine.
Imagine a world in which tort doctrine applied to road accidents but
liability insurance was not available. As potential harm-doers, people
would face the risk of being ordered to pay compensatory damages,
which they would have to do out of their own resources if they could.
As potential harm-sufferers, people would face the risk of being unable
to recover damages awarded to them from harm-doers who lacked the
resources to pay. Both groups could face financial ruin.
Now imagine a world in which tort doctrine applied, and there was
a market in liability insurance, but car-users were free not to purchase
such insurance. By choosing not to purchase liability insurance, potential
harm-doers who lacked sufficient resources to pay a significant award
of compensatory damages (the majority?) could make themselves effec-
tively ‘judgment-proof’ and not worth suing. On the other hand, poten-
tial harm-sufferers would face the risk of being injured by an uninsured
driver who lacked the resources to pay. In that world, tort law would
operate as a sort of lottery in which the prize was having the ‘good luck’
to be injured by an insured, rather than an uninsured, harm-doer.
This is the world that had come into existence in England by the late
1920s, early in the age of mass production of motor vehicles: liability
insurance was readily available, but it was not compulsory for vehicle
owners to buy it. The problems created by living in this world became so
serious that in addition to making liability insurance compulsory, Parlia-
ment made it a criminal offence to drive without insurance and enacted
Implementation of Tort Law by Insurers 87
various provisions designed to overcome technical problems that might

make an insurance policy ineffective. It is no exaggeration to say that
without compulsory road-accident liability insurance, the tort system
that we have today, in which people injured in road accidents are quite
reliably compensated by harm-doers, would not exist. It is also very plau-
sible to argue that without compulsory liability insurance, tort doctrine
would be different than it is in various respects. For instance, the rule
that learner drivers are held to the same standard of care as experienced
drivers (Nettleship v Weston [1971] 2 QB 691) would seem deeply unfair
and highly unrealistic in a world without liability insurance. Even more
importantly, the typical harm-doer could not afford to pay compensa-
tory damages, in even a moderately serious case of personal injuries, out
of their own resources and without liability insurance.
This explains why the vast majority of personal-injury tort claims
are made against harm-doers who are insured against tort liability.
A very small proportion are made against harm-doers who have sufficient
resources to pay damages without the support of an insurer (they are
sometimes call ‘self-insurers’). It is a waste of time and resources to make
a tort claim against a harm-doer who is not insured or who could not
afford to pay damages out of their own resources. This explains why most
personal-injury tort claims relate to road accidents and workplace acci-
dents (both areas in which liability insurance is compulsory), medical-
accident claims against the NHS, and ‘public liability’ claims against local
authorities. By contrast, for instance, very few tort claims are made in
relation to accidents in the home because insurance against tort liability
to other occupants of the home is neither compulsory nor common.
3. IMPLEMENTATION OF TORT LAW

BY INSURERS
Insurance companies settle the vast majority of cases without asking a

court to determine the legal obligations of the insured defendant under
tort law. For insurance companies, going to court is typically a last resort
when all attempts to settle have failed. The same is more-or-less true of
tort claimants, especially when they are being advised by a lawyer or an
insurance company. Why are most claims against insured defendants
settled? An important part of the answer is that going to court can be
very expensive, and much more expensive than settling out of court.
One reason for this is that to apply many of the rules of tort law accurately
and properly (as a court must aim to do), it is necessary to investigate the
facts of what happened, and the circumstances, causes and effects of the
accident, in great detail, which can be a very costly exercise. Three issues
that need to be decided in resolving tort claims deserve special mention
in this respect: negligence, causation and assessment of damages.
PROOF OF NEGLIGENCE
Take the issue of negligence, first. Before it can be decided whether or

not what the harm-doer did (or did not do) was negligent, it is necessary
to investigate what it was that they did (or did not do), when, in what
circumstances, and how. The legal concept of negligence, on which most
tort claims for personal injury are based, is extremely ‘fact-dependent’:
‘reasonableness’ is judged ‘in all the circumstances of the case’. Many acci-
dents that result in personal injury occur in a very brief period of time,
often in a fraction of a second. Even assuming that suitable witnesses to
the accident are available, deciding the negligence issue requires them to
be able to recall accurately what occurred in that fraction of a second if
we are to have any confidence that what they say happened actually did
happen. The unreliability of observations of eyewitnesses (even highly
trained and experienced ones) is well documented. To the inaccuracies
of observation must be added the difficulties of recall produced by the
considerable period that often elapses between the accident and the time
when witnesses are asked to give an account of what happened; and also
the fact that people do not always tell the truth. If, as a result of such
problems, the version of some witnesses conflicts with that of others, it
may be very difficult to be confident of reaching a correct conclusion.
To make matters worse, in a significant number of cases, suitable e vidence
is simply unavailable at all. Different, but equally difficult, problems may
arise in proving fault in cases of illness or disease as opposed to traumatic
accident (Stapleton 1986, chapter 4).
PROOF OF CAUSATION
Consider causation next. Of all the aspects of tort law, causation is

perhaps the most complex and difficult to grasp. This is not so much
(or, at least, not only) because the relevant doctrine is complex and
difficult but also because the very idea of causation—of what it means
to say that one thing causes another—has been a hot topic of debate
amongst philosophers for thousands of years; and the disagreements and
ambiguities that persist in these debates are reflected in the law. Fortu-
nately, it is not necessary for our purposes to explore the complexities
and difficulties of causation in any detail. All that is needed is to explain
why investigating causation can be a very costly business.
Recall the distinction drawn earlier between ‘harm’ and ‘damage’
(see page 36–7). Damage consists of personal injury, property d amage,
financial loss and so on. Where the claim is that tortious conduct
inflicted damage on the harm-sufferer, the harm-sufferer must prove
that the tortious conduct ‘caused’ the damage. The legal concept of cau-
sation is an amalgam of ideas about how events are connected in the
world (often called ‘factual’ causation) and ideas about who should take
(‘causal’) responsibility for things that happen in the world (sometimes
called ‘legal’ causation). Here we are concerned with factual causation,
not causal responsibility. In many cases, it may be very difficult—and,
hence, costly—to determine whether or not particular tortious conduct
was the factual cause of particular damage.
This may be hard enough in the case of an accident that happens in a
moment, for all the reasons mentioned in the earlier discussion of proof
of negligence. It may be even harder in cases of medical negligence, for
instance, if the question arises of whether injury suffered in the course
of medical treatment was a result of (tortious) treatment or of the (non-
tortious) condition being treated. Thorny problems also arise in cases
where it is alleged that a person has become ill or contracted a disease
as a result of being exposed to some substance or taking some drug
(Stapleton 1986, chapter 3). Our knowledge of the way many diseases
and illnesses come about is inadequate, and this may present an impen-
etrable barrier to much tort litigation. Or suppose that a person becomes
ill as a result of taking medication that is made by various manufacturers,
and it cannot be proved which manufacturer produced the dose that
caused the illness.
Such problems, arising from ‘evidentiary gaps’, have been explored in
recent years in a string of cases in which harm-sufferers claim to have
contracted one or other of various lung diseases as a result of tortious
exposure to asbestos. These cases illustrate several of the most difficult
issues surrounding proof of factual causation. For instance, one of the
illnesses in question is mesothelioma. All that is known about this illness

is that it is caused by exposure to asbestos; but how it is caused remains a
mystery. For instance, can it be caused by exposure to one fibre of asbes-
tos or is greater exposure needed? Suppose a person is tortiously exposed
to asbestos by several employers over a period of years, or that a worker
is exposed to asbestos tortiously at work, but is also self-exposed in the
course of DIY activities at home. Since we do not know how mesothe-
lioma is caused, we cannot say which of the exposures caused the harm-
sufferer’s illness. Or suppose that a person who has smoked for many
years claims to have contracted lung cancer as a result of tortious
exposure to asbestos. Lung cancer has many possible causes, including
smoking; but we may not know enough to be able to say, in any case in
which various possible causes were operative, which (or which combina-
tion) did the harm.
How does the law deal with these and similar problems of proving
factual causation? To answer this question we must first say a little more
about factual causation. The basic legal test of whether tortious conduct
in fact caused injury is whether the conduct was a ‘necessary condition’
of the injury occurring. The question is: would the injury have occurred
‘but for’ the tortious conduct. (Sometimes conduct will be treated as a
cause even though it was not a necessary condition; but we need not
explore this complication here.) In tort, the claimant must prove that the
tortious conduct was a necessary condition of the harm suffered ‘on the
balance of probabilities’. This means that the claim will succeed only if it is
‘more probable than not’ that tortious conduct was the cause. In numeri-
cal terms, the harm-sufferer must prove that the conduct increased the
risk of the damage by more than 100 per cent—in other words, that the
conduct at least doubled the risk of the damage (say, from two in a
million to five in a million). This ‘balance-of-probabilities test’ operates
in an all-or-nothing way: if the court is satisfied that the harm-sufferer
has met the test, the harm-sufferer is entitled to full compensation for the
damage; but if it is not satisfied, the harm-doer escapes liability entirely.
An implication of this rule about ‘burden of proof’ is that conduct may
be held to be the cause of damage even though, in fact, the conduct was
not the cause; and, conversely, that conduct may be held not to be the
cause of damage even though it was the cause.
In the sorts of difficult cases of evidentiary gaps that we have been
considering, the result of applying the legal test of causation using the
balance-of-probabilities standard of proof may well be that the claim fails.
However, this result has sometimes been thought unfair. For instance,
why (it is asked) should a worker who has been tortiously exposed to
asbestos by various employers over a period of years not be compensated
merely because the worker cannot prove which exposure or combination
of exposures caused his condition, even though we know that exposure
to asbestos must have caused the mesothelioma?
Two different approaches have been tried in attempts to overcome
such ‘unfairness’. The first is to say that it is enough, in some cases at least,
for the harm-sufferer to prove that the harm-doer’s tortious conduct sig-
nificantly increased the risk of the damage, even though the increase was
100 per cent or less (Fairchild v Glenhaven Funeral Services [2003] 1 AC 32).
In cases where the increase in risk can be arithmetically quantified (say,
40 per cent), a second approach is to argue that the harm-sufferer should
be able to succeed by proving, on the balance of probabilities, that because
of the conduct, they lost a 40 per cent chance of avoiding the injury.
The first approach involves modifying the burden of proof on the issue
of factual causation, while the second involves redefining the damage that
must be proved (on the balance of probabilities) to have been caused by
the tortious conduct: the damage is the (40 per cent) chance of avoiding
the injury, not the injury itself. Under this second approach, the compen-
sation would be assessed as a proportion (40 per cent) of what it would
be if the damage had been the injury itself. Unlike the first approach and
the balance-of-probabilities test, which are all-or-nothing rules, this
second approach contemplates liability ‘proportional to risk’.
Both the all-or-nothing and the proportional approaches have advan-
tages, and corresponding disadvantages for harm-sufferers and harm-
doers respectively. The all-or-nothing, balance of-probabilities approach
makes it relatively harder for the harm-sufferer to establish liability; but
once this is done, full compensation follows. In contrast, lowering the
burden of proof below balance-of-probabilities under the all-or-nothing
approach disadvantages harm-doers without offering them any compen-
sating advantage; and so it has been rejected (Wilsher v Essex AHA [1988]
AC 1074). The proportional approach makes it easier for the harm-
sufferer to recover something, but reduces the risk that the harm-doer
will have to pay out in full. It is followed in some cases. For example, if a
solicitor negligently fails to begin a tort action in time so that the harm-
sufferer’s claim is unsuccessful, the harm-sufferer may be able to sue the
solicitor for loss of the chance of winning damages. If the harm-sufferer
can prove, on the balance of probabilities, that if the solicitor had not been
negligent the action would have gone ahead with a significant chance
of success, damages against the solicitor will be assessed as a percentage
of what would have been recovered if the action that was never started
had been successful, depending on the estimated chance that that action
would have succeeded. In one case, however, the House of Lords refused
to allow a claimant to recover damages proportional to the chance that
a medical procedure, which he had been negligently denied, would have
been successful and would have prevented him developing a medical
condition (Hotson v East Berks HA [1987] AC 750). It is not clear how
this difference of approach should be explained.
Why is the basic rule of liability all-or-nothing rather than propor-
tionality to risk? A practical answer to this question may be that a thor-
oughgoing system of liability proportional to risk would be exceedingly
difficult to operate because in very many cases, the statistical evidence
necessary to calculate risks in a mathematically accurate way would not
be available. Theoretically, the answer, I believe, is that tort law seeks
to strike a fair balance between the interest of the harm-sufferer in not
being interfered with and the interest of the defendant in freedom of
action. The rule, of no liability below a threshold and full liability above
it, is a rough but not obviously unfair compromise between the compet-
ing interests of the two parties. If that is right, why is the burden of proof
under the all-or-nothing approach set at the balance of probabilities? The
best answer may simply be that the balance-of-probabilities standard is
intuitively attractive as a minimum; that it would be difficult to describe
clearly in words any particular threshold higher than ‘balance of proba-
bilities’ and lower than ‘beyond reasonable doubt’ (the criminal burden);
and that to use a figure (such as 75 per cent) would be pointless given
that the statistical information necessary to arrive at such a figure would
rarely, if ever, be available. Furthermore (as already noted), in practice,
because reliable statistical evidence will usually be lacking, what matters
is not whether the balance-of-probabilities threshold has been reached
but whether the court is satisfied that it has. This means that to meet the
burden of proof, all the claimant can do is to bring before the court all
the evidence they have supporting their case and hope that it will satisfy
the court that the threshold (whatever it is) has been reached.
ASSESSMENT OF DAMAGES
A third reason why bringing a tort claim to court may be very costly lies
in the legal rules about assessment of damages in personal injury cases.
In the typical tort case, damages ‘compensate’ for damage caused by the
harm-doer to the harm-sufferer. Recall that ‘damage’ is injury—physical,
mental and so on—resulting from an interference with a protected inter-
est. In some cases, ‘restitutionary’ damages may be awarded to strip the
harm-doer of some benefit acquired by the tortious conduct. Very rarely,
damages may be awarded in cases where the harm-doer causes no dam-
age but merely interferes with a protected interest—for instance, by
entering someone’s land without authorisation. Such damages are called
‘nominal’ or ‘vindicatory’. They are (relatively) small in amount and
simply mark the fact that a protected interest has been interfered with.
In very rare cases, where the court considers the interference trivial or the
harm-sufferer undeserving, they may be called ‘contemptuous’.
At the other extreme, ‘punitive’ or ‘exemplary’ damages are occasion-
ally awarded to mark the court’s disapproval of the harm-doer’s conduct
because, for instance, it was planned and deliberate, showing disrespect
for the harm-sufferer. Punitive damages will be substantial and are typi-
cally awarded in cases where the tortious conduct has also caused sig-
nificant damage. Most commonly, however, damages are awarded, and
awarded only, to compensate for damage caused by the harm-doer’s tor-
tious conduct.
A confusing variety of terms are used to refer to damage. The word
‘loss’ is used in phrases such as ‘economic loss’ and ‘compensation for
loss’; ‘injury’ is used in phrases such as ‘personal injury’; ‘harm’ is used
in phrases such as ‘mental harm’. In this discussion of compensation,
all these terms can be treated as synonyms for ‘damage’. (But remem-
ber that elsewhere we have distinguished between ‘harm’ and ‘damage’
(page 36–7). In this usage, all torts cause harm, but not all torts cause
damage.)
Damage is what is compensated for. The remedy of compensation for
damage is, confusingly, called ‘damages’. The phrase ‘heads of damage’
refers to the various types of damage for which compensation can be
given. The phrase ‘the measure of damages’ refers to the formulae used
to calculate damages ‘under’ the various heads. The phrase ‘quantum of
damages’ refers to the amount of compensation awarded. The process
of calculating the quantum of damages is referred to as ‘assessment
of damages’. Perhaps the most important distinction in this mass of
terminology is that between ‘damage’ and ‘damages’: damages (plural,
the remedy) compensate for damage (singular, the consequence(s) of
the tort).
The rules about assessment of compensatory tort damages for p ersonal

injury are extremely complex and technical; and it is, fortunately, unnec-
essary to describe them in detail here. It will be enough to provide an
outline that will help the reader to understand why assessment of dam-
ages can be very costly in time and resources. (For more detail see Cane
2013, chapter 6).
Heads of Damage for Personal Injuries

There are various ‘heads of damage’. These include:
—— Loss of income in the past (before the date when the damages are
being assessed). For example, a person in work who is injured in a
road accident might unable to work for a period and will be entitled
to be compensated for loss of the wages which would have been pay-
able if they had been able to work during that period.
—— Loss of income in the future (after the date when the damages are
being assessed). For example, a working person may be so badly
injured in a road accident that they will never be able to work again.
Such a person could be compensated in tort not only for ‘past loss
of income’ but also for ‘future loss of income’ in the period when
they would normally have been expected to go on working if they
had not been injured.
—— Medical and related expenses incurred in the past that would not
have been incurred but for the tort.
—— Medical and related expenses that will probably be incurred in the
future that would not have been incurred but for the tort.
—— ‘Non-pecuniary (or ‘non-financial’) loss’ such as ‘pain and suffer-
ing’, distress, anxiety and inconvenience; and ‘loss of amenities’ such
as the use of a limb.
Damages ‘under’ each of these heads of damage are designed to compen-
sate the harm-sufferer in money for the actual or hypothetical (expected)
deterioration in their position as a result of the tort.
Compensation in Theory
Assessing the quantum of compensatory damages is a complicated and
technical process that may be very costly. This is partly because in theory,
in every tort case, damages are to be assessed taking account of all the
facts relevant to the individual claimant’s pre-injury and post-injury

condition, often for many years into the future.
The concept of compensation can be unpacked into two separate
principles: the ‘100 per cent principle’ and the ‘standard-of-living prin-
ciple’. The 100 per cent principle says that compensation must be ‘full’.
This principle is most easily applied to past financial losses—they have
already occurred, and they can be assessed reasonably accurately by tak-
ing evidence of market values of goods and services. The full compensa-
tion principle is less easily applied to future financial losses because of
the uncertainties inherent in predicting the future; but the difficulties are
practical rather than theoretical. The principle is least easily applied in
relation to non-pecuniary losses (whether past or future), which relate to
things that have no market value. In this context, ‘full’ compensation is
usually interpreted to mean ‘fair’ compensation—that is, an amount that
seems large enough to recognise the seriousness of what has been suf-
fered but not so large that it seems ‘unfair’ to the harm-doer. In practice,
in personal injury cases, damages for non-pecuniary loss are calculated
according to a quite detailed set of guidelines published by the Judi-
cial Studies Board (the body responsible for the continuing education
of judges). These guidelines set an upper limit of around £337,700 for
cases involving the most serious injuries such as quadriplegia and severe
brain damage. Although some consider this figure too low, its ration-
ale, perhaps, is that for most people, such a sum is a lot of money, and
large enough to acknowledge the wrong done and the injury suffered.
The guidelines describe various categories of injury (such as loss of an
arm, or disfigurement, or brain damage) and specify for each category
a range (say, £20,000–£50,000). The amount awarded in any particular
case is decided according to the seriousness of the claimant’s injuries
within the relevant category.
The second principle of compensation is the ‘standard-of-living prin-
ciple’. It dictates that compensation for pecuniary loss should reflect the
claimant’s pre-tort financial position in life. The tort system does not
redress inequalities in the distribution of income and resources in soci-
ety. Rather, by awarding compensation related to the claimant’s pre-tort
standard of living, it ameliorates disruption to their lives and life-plans
(Goodin 1995, chapter 11; also Goodin 1989). The basic principle of com-
pensation in tort law is restorative or corrective, not re-distributional.
The standard-of-living principle implies not only that compensation for
loss of income should be ‘earnings-related’ but also that someone who,

as a result of a tort, is unable to continue to do productive but unpaid
work consisting of familial caring (such as cleaning a house and cooking)
should be compensated for the value of that work. Compensation can
also be awarded to an injured claimant representing the value of nursing
and other domestic services made necessary by the tort and provided
gratuitously by a family member or friend, whether or not the carer gave
up paid work in order to be able to provide the care.
There are types of situation in which a person held liable in tort may
end up paying less than these two principles dictate. First, if the claimant
has been contributorily negligent, the amount payable by the defendant
may be reduced to reflect the claimant’s responsibility for the loss suf-
fered. Second, where two or more harm-doers are held liable for the same
loss, although each is liable to compensate the victim in full, as between
themselves they may each be required to ‘contribute’ a proportion of the
damages reflecting the responsibility of each for the damage inflicted.
Compensation in Practice
Normally, damages are assessed once only, once and for all, in respect
of past, actual and future, likely damage. Suppose that a young p erson
is tortiously injured in a way that will have permanent detrimental
effects on their health, lifestyle and earning capacity. When awarding
tort damages the court will usually assess damages as a single ‘lump sum’
to compensate for all past and future damage resulting from the tort.
The assumption is that the claimant will invest this lump sum to pro-
duce a continuing income for as long as it is needed. Courts rarely order
that damages be paid in the form of ‘periodical payments’ or a ‘pension’.
Originally, this approach was probably adopted because courts had no
way of supervising compliance with such an order.
The result is that in assessing damages the court must normally specu-
late about the future in the attempt to calculate a lump sum that will,
as nearly as possible, compensate for future damage. Since the purpose
of compensatory damages is to put the claimant into the position they
would have been in if the tort had not occurred, the court must speculate
not only about what their life will be like as an injured person (including,
for instance whether their health will deteriorate further in the future
as a result of the injuries), but also about the position they would have
been in if they had not been injured. Speculation is required not only
Settlement 97
about the claimant’s health and other personal circumstances, but also
about matters such as inflation, and tax and interest rates (which affect the
amount of income which any lump sum award will be able to generate).
This once-for-all rule means that the assessment of damages is a hit
and-miss affair. Indeed, in very many cases it authorises awards of dam-
ages that inevitably either overcompensate or undercompensate, if only
because the future is impossible to predict with complete accuracy.
To make matters worse, claimants who receive large amounts in respect
of long-term injuries carry a heavy burden in investing the damages
wisely to produce the projected continuing income.
The once-for-all rule is one of the main reasons why assessing compen-
satory damages can be very costly. It involves speculation about v arious
factors, the operation and effect of which may be extremely unclear and
open to significant disagreement. In serious cases, such disagreements
may result in large differences between what the claimant thinks will
be needed to provide full, standard-of-living compensation and what
the defendant considers will be sufficient. The larger the sums at stake,
the more sense it makes to devote considerable time and resources to
resolving the disagreements. Conversely, the smaller the sums in issue the
less worthwhile it is to spend time and money arguing about the ‘correct’
amount of compensation. Better for the defendant to pay what the claim-
ant asks for than to spend a large amount to secure a small reduction in
the compensation. Conversely for the claimant.
4. SETTLEMENT
Most personal-injury tort claims are settled out of court without judicial
involvement, by negotiation and agreement between a claimant repre-
sented by a lawyer (who may be acting on instructions from an insurer,
such as a company from which the claimant has purchased insurance
against the risk of having to litigate) and a defendant represented by a
lawyer acting on instructions from a liability insurer. Perhaps the main
reason why most personal-injury tort claims are settled is that applying
the rules of tort law according to their terms may be very expensive rela-
tive to the amount of compensation claimed and is not, anyway, required
in order to make a lawful settlement contract that could, in the last resort,
be enforced by the power of the state. It follows that most personal-injury
tort claims are not resolved by an application of tort doctrine to the claim
by a court but rather by a negotiatied agreement between the parties
about how tort doctrine will be applied. It follows, further, that in the
typical case, the agreed application of the doctrine may be different from
what the official application would have been had that case gone to court.
Putting the point bluntly, a defendant may agree to pay compensation
despite lack of proof, to the requisite standard, of negligence or causa-
tion; or may agree to pay an amount of compensation greater than appli-
cation by a court of the rules of assessment of damages would require.
Conversely, a claimant may agree to withdraw a claim because of inability
to prove negligence or causation, even though further investigation could
have produced evidence that would have satisfied a court on these issues;
or may agree to accept compensation less than an official application
of the rules of assessment of damages would justify. From one point of
view, the possible gap between the terms of a settlement agreement and
the likely outcome of an official application of tort doctrine might seem
unfair. Surely ‘justice’ requires proper application of the doctrine in every
case? On the other hand, however valuable ‘justice’ may be, it is not cost-
less (or, we might say, ‘priceless’). In the end, doing justice must compete,
for limited social resources, with healthcare, education and other highly
valued social goods. At some point, the potential, aggregate social cost of
doing ‘tort justice according to the law’ in every case would outweigh the
expected, aggregate, social benefits. In the individual case, social justice
may require being satisfied with agreement ‘in the shadow of the law’
as opposed to judicial decision ‘according to law’. In court, tort doctrine
determines the outcome; out of court it is merely influential.
Nevertheless, the settlement process certainly has a dark side. In an
extremely influential article (Galanter 1974), US scholar Marc G alanter
distinguished between participants in legal processes on the basis of
whether they were ‘one-shotters’ or ‘repeat-players’. The typical per-
sonal injury claimant is a one-shotter, while the typical defendant—in
the guise of a liability insurer—is a repeat-player. Galanter’s basic argu-
ment was that repeat-player defendants have various (unfair) advantages
over one-shotter claimants in the litigation process. Galanter’s analysis
has provided the conceptual framework for academic studies of the tort
settlement process over the past 40 years; and, in their authors’ opin-
ions anyway, they have tended to confirm Galanter’s thesis. By contrast,
those who argue that we now live in a ‘blame’ or ‘compensation’ culture
maintain that developments over that period have turned the tables, and
Settlement 99
that the advantage now lies with claimants to an extent that threatens
economic prosperity and the value of personal responsibility. Where the
‘truth’ lies is partly a matter of perspective and interpretation; and the
opposing sides of the debate predictably argue for very different ‘reforms’
of the tort system. In fact, we do not know enough about how the settle-
ment process works to decide which of these perspectives is nearer the
truth.
So what do we know? In the typical personal injury case, settlement
involves a largely unregulated process of bargaining between the harm-
doer and the harm-sufferer conducted on their behalf by lawyers (for
more see Cane 2013, chapter 10). The settlement process involves what
economists call a ‘bilateral monopoly’: the claimant can ‘sell’ their claim
to only one potential buyer—the insurer—and the insurer can ‘buy’ the
claim from only one potential seller—the claimant. The claimant
cannot, as it were, ‘shop around’ to get good value for the claim. The
length and course of the bargaining process depend on various factors:
the efficiency, skill and experience of the claimant’s representative; the
time needed to collect evidence; whether it is necessary to wait and see
how the claimant’s medical condition will develop before assessing dam-
ages; the number of issues in dispute; and whether the parties and their
representatives take a confrontational or a co-operative approach to the
settlement process. Typically, defendants and insurers have less to lose by
delay than claimants.
The respective aims of the defendant and the defendant’s insurer in
the settlement process are usually the same: to minimise the amount paid
out to the claimant. For this reason, insurers are well-placed to exploit
to their own advantage any inexperience or ineptitude on the part of
the claimant’s representative, any weaknesses in the claimant’s case and
any uncertainties in the law. By contrast, the interests of the claimant
and their representative may be in conflict: the best move for the repre-
sentative may be to settle quickly, while the client’s best interest may lie
in pressing the claim and possibly commencing court proceedings to put
pressure on the defendant. Rejection of an insurer’s first offer commonly
leads to a second, increased offer being made, and in some cases the pro-
cess can be repeated several times. However, in most cases, the first offer is
accepted. The difficulty and uncertainties of litigation and fear of lengthy
further negotiations are, no doubt, potent factors in explaining the high
level of acceptance of first offers. Many personal injury claimants will
have had no previous experience of making a legal claim, and may find
the whole process bewildering or even frightening. The emotional stress

generated by having been injured, and then by having to engage in disa-
greeable haggling, often produces a desire to settle as quickly as possible,
even if at an unreasonably low figure. The insurer, who is experienced in
the process and emotionally uninvolved, can better afford to ‘sit it out’.
As for the amounts of compensation received as a result of s ettlement
negotiations, there are some grounds for believing that in cases of minor
injury (the great majority), claimants tend to recover a larger propor-
tion of what a strict application of the rules of assessment of damages
would require. Intuitively, we would expect smaller claims to be con-
tested less vigorously by insurers, both as to liability and assessment of
damages, than larger ones, because the smaller the claim, the greater its
nuisance value; or, in other words, the greater the likelihood that the cost
of contesting it will be greater than the amount of the claim. There is
no necessary relationship between the size of a claim and how difficult
and complex it is in legal terms. Large claims may be very simple and
small claims very complex. But the smaller the claim, the more likely that
resisting it will not be financially worthwhile. Insurers do not like large
claims and will investigate and resist them with vigour. On the other
hand, however weak the claimant’s case, it may still pay the defendant to
settle a small claim rather than to fight. For reasons of cost and adminis-
trative efficiency, insurers typically settle low-value claims on the basis of
rules-of-thumb—such as that rear-end accidents are always the fault of
the following driver—rather than a thorough investigation of the issue
of fault. Such rules-of-thumb are not only simpler and cheaper to apply
than the legal concept of fault, but they also tend to be more favourable
to claimants than strict rules of law. In practice, few claims are totally
worthless so long as there is at least some room for argument about fault.
This explains the fact that most claims result in the payment of some
compensation.
8
Politics
KI 6: Tort law is political
1. THE POLITICAL FOUNDATIONS

OF TORT LAW
Your first reaction to this odd-sounding claim may well be to protest that
‘law is one thing and politics quite another’: tort law should be a politics-
free zone. You might concede that some areas of law are obviously and,
perhaps rightly, political: social security law, for example. Even so, you
might insist that tort law is different: it is and should be about the rights
and duties of individuals in their dealings with one another. ‘Playing pol-
itics’ with tort law (some might say) is deplorable. This sort of argument
has become very popular in recent years. Amongst tort scholars, probably
its most famous proponent is Ernest Weinrib (Weinrib 2012a, 2012b).
He argues that tort law is concerned with ‘corrective justice’, not ‘distrib-
utive justice’; and that ‘distributive justice is the home of the political’
(Weinrib 2012a, 210). Others have similarly argued that tort law is about
‘rights and duties’, not ‘policy’ (for example, Stevens 2007). Some peo-
ple argue that because tort law is primarily about correcting individual
wrongs and protecting individual rights, it is better for tort law to be
made by courts than by Parliament because courts make law in the pro-
cess of (and as a by-product) of correcting wrongs and protecting rights
whereas Parliament makes law ‘politically’, without regard to individual
claims and remedies.
What is ‘playing politics’, and what is objectionable about it? I magine an
opposition leader who attacks the government’s public spending record
at the scene of an apartment block fire in which people are killed and
102 Politics
injured. He or she may—fairly or unfairly—be accused of playing polit-

ical games. The appropriate reaction at such a time, critics might say,
would be to concentrate on the personal plight of the victims and their
loved ones, and leave the political point-scoring for later. At the bottom
of such a reaction, I think, is the idea that the proper focus of political
activity is on society and groups, not on individuals—on the overall costs
and benefits of decisions, not their personal impact on winners and los-
ers. We don’t want our politicians to lose their nerve because decisions
that are good for society produce some personal tragedies. At the same
time, we don’t want our politicians comforting a policy’s victims with
nothing more than the thought that all government decisions produce
losers as well as winners.
The main business of politics is the distribution among the members
of society of the benefits and burdens of living together. In this sense, the
politics (or the ‘policies’) of (personal-injury) tort law concern the way
the benefits it provides (remedies) and the costs it imposes (liability) are
distributed amongst social groups—tort law’s winners and losers, if you
like. In other words, the politics (and policies) of tort law are not about
how individual tort claims are resolved, but rather about the general
rules and principles that determine how individual claims are dealt with.
A good illustration is the classic case of Donoghue v Stevenson [1932]
AC 562. That case changed tort law. Before the decision, tort law would
not allow a person injured by a defective product to sue the manufac-
turer. The Court decided that in future, it should. Before the decision,
consumers of defective products were tort law’s losers; but after the deci-
sion they were its winners and manufacturers became its new losers.
Tort law, we might say, does ‘justice according to law’. ‘Justice’ refers to
the ‘correction’ of harm in individual cases, and ‘law’ refers to the rules
that determine how the cost of (correcting) harm is ‘distributed’. Many
resist the idea that tort law is political because they focus on how tort law
applies in individual cases and neglect the general rules that determine
how individual cases are dealt with.
‘Well’, you might reply, ‘I can see easily enough that social security law
is about distributing benefits and burdens rather than correcting wrongs,
but I’m not so sure about tort law.’ Social security law seems obviously
about distributive justice because it is designed to re-distribute financial
wealth from members of one group, merely because they have it, to mem-
bers of another group, merely because they need it. It is not concerned
with justice between individuals. However, it is a mistake to think about
Five Faces of the Politics of Tort Law 103
distribution solely or primarily in terms of redistribution, because redis-

tribution involves departure from a status quo that is itself a distribution.
Law doesn’t have to be redistributive to be distributive. It’s also a mistake to
think of redistribution as necessarily involving transfer from rich to poor.
For instance, consumption taxes typically fall more heavily on the poor
than the rich (they are ‘regressive’), and we may easily think of awards of
tort damages as transferring resources from harm-doers to harm-sufferers
regardless of their relative wealth. Indeed, a fundamental criticism that is
sometimes made of tort law is precisely that it disregards the relative wealth
of the two parties and is, generally, regressive in its effect. This is because it
is funded by liability insurance, the cost of which is related to the risk that
the insured will be held liable in tort, not the insured’s wealth; but its ben-
efits are related to the wealth of the harm-sufferer. The more you earn, the
more you get out of the tort system, regardless of how much you put in. By
contrast, both the funding of the social security system—by general, and
broadly ‘progressive’—taxation, and the benefits it p rovides—typically
flat-rate or income-related—take account of the wealth of contributors
on the one hand and beneficiaries on the other.
So we do not have to look too hard to get a picture of tort law as a
mechanism for (re)distribution of wealth funded on the basis of risk.
From this perspective, tort law, like social security law, is a set of rules and
principles about entitlement to benefits and a set of rules about obliga-
tions to contribute to the funding of those benefits. The tort system and
the social security system are both about distributing wealth amongst
social groups. What primarily distinguishes tort law from social security
law is not its basic character but the details of its benefit and funding
rules. If, as most would concede, the benefit and funding rules of the
social security system matters are of political concern, the benefit and
funding rules of the tort system are also of political concern. The fact
that many of the most important rules of tort law are made by courts, not
Parliament, does not deprive them of their political salience.
2. FIVE FACES OF THE POLITICS

OF TORT LAW
In this section I will say something about each of five strands in politi-
cal debates about tort law. What I mean by political debates are debates
104 Politics
about how the rules and principles of tort law should be designed or
changed rather than debates about the way tort law is applied in indi-
vidual cases. They are the politics of regulation, the politics of compen-
sation, the politics of responsibility, the politics of law-making and the
politics of claiming.
THE POLITICS OF REGULATION
Regulation is about using legal rules and institutions ‘instrumentally’ to

influence our behaviour as potential harm-doers and self-harmers, and
to minimise the incidence of harm caused by such behaviour. The idea
that tort law might be used in this way became extremely popular in the
United States in the 1960s and 1970s and now underpins the way many
US lawyers think about tort law. Starting from the position that ‘the time
has come for a full re-examination of what we want a system of acci-
dent law to accomplish and for an analysis of how different approaches
to accidents would accomplish our goals’, and that ‘the principal func-
tion of accident law is to’ minimise the social costs of accidents, Guido
Calabresi suggested that instead of distributing the cost of harm result-
ing from road accidents to the party whose tortious conduct caused the
harm, the law should distribute the cost to the party who could have
avoided it most cheaply (Calabresi 1970). It is implicit in this approach
that allocating the costs of harm on the basis of the relative capacity of
the harm-doer and the harm-sufferer to avoid harm cheaply, rather than
on the basis of their relative fault in causing the harm, would produce a
more desirable distribution of the costs and benefits of social life associ-
ated with motor traffic. This is a political argument.
The practical implications of Calabresi’s recommendations are radical.
Giving effect to the cheapest-cost-avoider principle would, as he recog-
nised, require the abolition, rather than merely the reform, of tort law,
and the introduction of an entirely different system designed to identify
cheapest cost avoiders. Where the cheapest cost avoider was the harm-
sufferer, that person would bear the costs of the accident. If it was some
other person, the principle would require that other person to pay the
costs of the accident but, unlike tort law, it would not necessarily require
the costs to be paid to the harm-sufferer personally. However, this sort
of regulatory approach to accident law has not, in fact, generated radical
reform proposals, even though it is pervasive in the US and has been
popularised in Hollywood docudramas such as A Civil Action (1998) and

Erin Brockovich (2000). In these stories we see tort law being used as an
alternative to ‘command and control regulation’ involving, for instance,
enforcement of workplace safety regulations and environmental quality
standards, ultimately, by a system of prosecution and penalties rather
than individual tort claims.
The predominant ideology of English personal injuries law is not reg-
ulatory, and there are relatively few strong advocates of using tort law pri-
marily for regulatory purposes. The regulatory approach lacks support
partly because empirical studies provide little evidence that tort law can
make a significant contribution to the minimisation of accident costs;
and many believe that the distributional consequences, of substitut-
ing the cheapest-cost-avoider principle for the fault principle currently
embodied in tort law, would be unacceptable. For such people, the whole
(political) point of ‘accident law’ is to correct wrongs, not to reduce acci-
dent costs. The disagreement is fundamental and political.
THE POLITICS OF COMPENSATION
This leads us on to the second strand in political debates about tort law:
the politics of compensation. In contrast to Calabresi, the Canadian legal
scholar, Terence Ison, began by assuming that ‘compensation’ of harm-
sufferers, rather than accident-cost-minimisation, was the prime func-
tion of accident law (Ison 1967). Ison looked carefully at tort law and
found it seriously deficient as a mechanism for compensating victims
of personal injuries. The practical implications of his approach were
just as radical as those of Calabresi’s. But unlike Calabresi, Ison followed
through, and made a practical proposal for replacing tort law with a
‘no-fault’ system of compensation based on the provision of social-security-
type payments for ‘diseases and violent injuries causing disablement and
death’, regardless of whether they were the result of anyone’s tortious
conduct. The 1970s was the heyday of this compensatory approach to
accident law. In 1974 a system, broadly of the sort Ison proposed, was
introduced in New Zealand covering most accidental injuries. In England,
a Royal Commission, which reported in 1978, recommended the enact-
ment of a system of no-fault compensation for road accidents, but this
never happened. In the 1970s and 1980s many no-fault compensation
schemes were put in place around the world, mostly limited to road
106 Politics
accidents or medical mishaps. However, by the late 1980s, the move to

no-fault had run out of steam, and by the 1990s the political climate had
become distinctly hostile to the sort of communitarian solutions to ‘the
problem of personal injuries’ that had been favoured by reform-minded
lawyers since the 1960s.
In England in the twenty-first century, total or even partial replacement
of tort law with no-fault alternatives for dealing with personal injuries
is politically inconceivable. The tort system has become an entrenched
feature of the ‘political economy’ of personal-injuries law (Cane 2007).
In the 1970s political debates about personal-injury law focused on how
to replace tort law. Now, they focus on how to live with it while solving
what are considered its most significant problems.
THE POLITICS OF RESPONSIBILITY
Tort law redistributes financial resources from harm-doers to harm-

sufferers. It also distributes risk between potential harm-doers and
potential harm-sufferers: causing harm by the conduct of risky activities
is the trigger of redistribution of resources through tort law. Tort liability
for personal injuries is liability based on responsibility for the creation
of risks of personal injury—but only certain risks. The rules and princi-
ples of tort law specify the sorts of risks that can attract liability if, and
when, they result in harm to another. Responsibility for preventing harm
caused by such risks is allocated to those who undertake risky activi-
ties. So far as concerns risks that fall outside the scope tort law, potential
harm-sufferers must look out for themselves—in other words, they must
take responsibility for their own safety. The politics of responsibility are
the politics of risk. Just as we can ask the political question of whether
resources are (re)distributed fairly, can also ask whether risks—and
responsibility—are distributed fairly. Tort law (re)distributes resources
fairly if, but only if, it distributes risks fairly. This is the domain of the
politics of responsibility.
The politics of regulation, like the politics of responsibility, is con-
cerned with distribution of risks; and the politics of compensation, like
the politics of responsibility, is concerned with redistribution of resources.
The politics of responsibility is distinctive in tying together these two con-
cerns with risks on the one hand and resources on the other. Tort law is
doubly distributive, doubly political: it distributes risks and resources.
The historical trajectory of the politics of responsibility over the past

50 years is nicely illustrated by the work of Patrick Atiyah. In Accidents,
Compensation and the Law (Atiyah 1970), he argued for the abolition of
tort liability for personal injuries first on the basis that it was an ineffi-
cient regulatory tool; and second on the ground not only that as a com-
pensation mechanism it was hugely expensive, but also that it distributed
resources unfairly between various groups of harm-sufferers. His reform
proposal (similarly to Ison’s) focused on the second of these criticisms
and more-or-less ignored the first. He recommended an extension of
the industrial-injuries component of the UK social security system to
include sickness and disability however caused, to be funded by increased
social security contributions.
Almost 30 years later, in The Damages Lottery (Atiyah 1997), Atiyah
once again argued for the abolition of tort law as a means of dealing
with the social problems of personal injuries. However, this time his
reform proposal was framed in terms of personal responsibility rather
than compensation. The main problem with tort law, he argued, was
that it had developed a bias in favour of harm-sufferers at the expense of
harm-doers, thereby unfairly distributing risks of harm, and resources,
between the two groups. In the process, it had created a ‘blame culture’ in
which, typically, people’s first reaction to adversity was to blame someone
else. In fact, however, what had changed since the 1970s was not tort law
but the political culture in which it operated. In the 1980s, Thatcherite
neo-liberals began to paint not only the social security system (which
Atiyah had championed in the earlier book), but also the tort system, as
sources of dependency. As much as possible, they argued, people should
take responsibility for their own health and safety and not look to either
the social security system or the tort system for relief when things go
wrong. In this spirit, Atiyah proposed the replacement of the tort sys-
tem of liability funded by liability insurance with a new regime in which
potential harm-sufferers would insure themselves against suffering harm
using ‘first-party’ or ‘loss’ insurance rather than ‘third-party’ or ‘liability’
insurance.
THE POLITICS OF LAW-MAKING
At bottom, Calabresi, Ison and Atiyah were all ‘abolitionists’. They

thought that tort law was such a deficient mechanism for dealing with the
108 Politics
social problems of personal injuries that they favoured its replacement

with a regime that would better achieve whatever each considered to be
the main goal of tort law, whether that related to accident prevention,
compensation or responsibility. An alternative to wholesale abolition
of tort law is incremental reform. For instance, to promote the regula-
tory goal, reformers may favour greater use of punitive damages to give
potential wrong-doers stronger messages than liability to compensate by
itself can deliver; or making it easier for large groups of harm-sufferers to
band together to claim against the manufacturer of a defective product or
an industrial polluter, reducing individual costs and generating publicity.
Proponents of the compensation goal have tended to focus on persuad-
ing law-makers to create new heads of damages and to increase levels of
damages. One neo-liberal response is to argue for ‘ceilings’, ‘thresholds’
and ‘caps’ on damages designed, particularly, to discourage low-value
claims that are disproportionately costly to process, and to encourage
people to find alternatives to tort claims to protect them against risks of
very serious personal injury.
This brings us to the fourth aspect of the politics of tort law—the
politics of law-making. Parliament makes law, but so do courts. Par-
liament makes law by enacting ‘statutes’; courts make ‘common law’.
Common law is (typically) made in the process of deciding cases; stat-
utes (typically) make no reference to individual cases. Traditionally, tort
law has been made by courts, not Parliaments. However, since the mid-
nineteenth century, the volume of statutory tort law has increased greatly.
In the English system of law, the more radical a proposed change to
the law, the more likely it will (have to) be made by Parliament rather
than the courts, by politicians rather than judges, by statute rather than
common law. Abolitionists are, of necessity, tolerant of wholesale Parlia-
mentary interventions, whereas some reformers argue that because tort
law has traditionally been made by judges, Parliament should make tort
law only when the courts are unwilling or unable to do so. A preference
for common-law over statutory tort law affects the extent and types of
changes that can be made to it.
Politics is about the distribution of risks and harms, but also about the
distribution of power, including law-making power. The politics of law-
making are the politics of power-distribution. In Australia near the turn
of the century it was a subject of vigorous political debate (Cane 2003).
A government committee was established to recommend statutory
changes to personal-injury tort law to make it harder for harm-sufferers
to win tort claims. The premise was that the balance of responsibility
between potential harm-sufferers and potential harm-doers had swung
too far in favour of the former. With a view to redressing the balance,
the committee proposed various changes to tort rules concerned with
tortious conduct, causation and defences. One of the arguments used
by those opposed to the changes was that the judges could achieve the
desired result themselves without the intervention of the legislature, and
should be left to do so. This could be done either by incremental adjust-
ment of relevant rules or, even, by different application of the existing
rules in individual cases without any explicit adjustment.
Arguments such as this are possible because in the English legal s ystem
(and the Australian) there are two distinct sources of law—statutes
made by Parliaments and common law made by courts. Neither legis-
latures nor courts by themselves have the resources to make all the rules
that need to be made to satisfy the (insatiable) social demand for law.
The politics of law-making concern the distribution of law-making
power between legislatures and courts. Because legislatures and courts
respectively are staffed quite differently and follow quite different law-
making procedures, the choice between them can generate considerable
(political) disagreement and contention.
THE POLITICS OF CLAIMING
In England, none of the political issues so far canvassed in this chapter

has received much attention in the past 20 or 30 years. Instead of con-
cern with the goals, content, and even the very existence, of tort law, the
focus has been on tort claiming and ‘access to justice’. Processing tort
claims both in and out of court costs money and, as we noted in Chapter 7,
can be very expensive and time-consuming. Unlike paying compensa-
tion, which transfers resources from harm-doer to harm-sufferer, claim-
ing consumes resources in meeting the cost of legal (and other related)
professional services and of the court system. In the 1980s in England,
the basic legal rule was that the legal costs incurred by the successful
party would be paid by the unsuccessful party, who would also pay their
own legal costs. In practice, the legal costs of defending a personal-injury
tort claim were typically borne by the defendant’s liability insurer, who
also had to pay the claimant’s costs if the claim succeeded. A significant
proportion of personal-injury claimants were entitled to (means-tested)
110 Politics
taxpayer-funded ‘legal aid’ (a form of social security payment) to cover

their legal costs. If the claim was successful, the claimant was typically
required to pay something back to the legal aid authorities. If the claim
failed, normally nothing was payable. A claimant who did not qualify
for legal aid might have insurance to cover legal costs (‘legal expenses
insurance’); otherwise they would have to carry the costs in the hope of
winning and receiving an ‘award of costs’ against the defendant. In prac-
tice, legal aid was critical to the operation of the tort system.
In the 1990s, two concerns began to dominate discussion of the pro-
cessing of personal-injury claims (mostly by settlement out of court): the
funding of claims, and the high cost, in time and money, of settlement
out-of-court and, very occasionally, proceedings in court. The full story
is long and complicated, but the main outlines can be briefly sketched.
First, beginning in the late 1990s, the legal rules of court-based claiming
procedure (which provide the structural framework for settlement nego-
tiations) were overhauled with the aim of reducing the cost of settling
standard claims (Sorabji 2014). Second, in the name of reducing public
spending, legal aid was gradually made unavailable for personal-injury
claims. Put in its place was the ‘conditional-fee arrangement’ under
which lawyers could provide services to claimants on a ‘no-win, no-fee
basis’, thus relieving them of the burden of paying costs upfront, and of
paying costs at all if the claim failed. This fundamental change in the
funding of legal services gave rise to a new industry—legal services brok-
ing by what became known as ‘claims management companies’ (CMCs).
These entities, that typically operate on a no-win, no-fee basis, arrange
for personal-injury claimants the various services—of solicitors, medical
experts, litigation insurers and so on—needed to achieve a settlement of
the claim. One result of these funding changes was that the annual num-
ber of road-accident, personal-injury claims, especially small claims, rose
dramatically after 2005 (Cane 2013, 260–66).
The availability and cost of legal services are political issues about the
distribution of the burdens and benefits of social life. They are an inex-
tricable part of the story of tort law because without legal services there
would probably be very few, if any, tort claims and tort would be much
less used to settle disputes. As has been made clear throughout this book,
resolving disputes is certainly not tort doctrine’s only, or even its most
important, use, but it is probably its most visible.
9
Uses
KI 7: Tort law ‘has its uses’
Like a knife safely stored in block or drawer, tort doctrine confined to

the books is inert, waiting to be brought to life by use. Lawyers often talk
about ‘law’s functions’ or ‘law’s purposes’, as if law were a person. I prefer
to say that law is made by people for certain purposes and to perform
certain functions, and that once made, it is available for people to use for
those purposes and to perform those functions. The purposes are those
of people, for whom law has its uses and functions.
It may be possible to use law for purposes other than those that its
makers had in mind. The possible uses of law are limited only by the
imagination and ingenuity of its users. Some uses of legal power may
themselves be tortious (McBride and Bagshaw 2015, chapter 25); but
subject to such legal constraints, law is available for any use that can
practically be made of it. Like knives, law is more useful for some jobs
than others. Criticism of tort law and recommendations for its reform or
abolition are often based in its alleged inefficacy and inefficiency in doing
the jobs we use it for.
Some of the functions that people most often use tort law for are:
—— Guiding conduct.
—— Allocating risk.
—— Remedying harm.
—— Preventing harm.
—— Punishing wrongdoing.
—— Doing justice.
—— Vindicating rights.
We will say something about each of these in turn.
112 Uses
1. GUIDING CONDUCT
As KI 1 tells us, tort law is law. Law-in-general has uses that tort law shares.
These include giving people guidance about how they may, ought and
ought not to behave in their interactions with others, protecting certain
interests, expressing disapproval of certain types of conduct and provid-
ing remedies for adverse effects, maintaining social order and promoting
social cohesion by providing means of resolving disputes, and supple-
menting morality both by applying its general principles to particular
circumstances and by providing socially acceptable and enforceable com-
promises between irreconcilably conflicting moral views. As was argued in
Chapter 2, law’s rich institutional resources may make it particularly use-
ful compared with other less-institutionalised social normative systems.
Just how useful law can be in guiding conduct will depend, for instance,
on how clear and precise its rules are, on the extent to which they
are internally consistent, and how much people know about them. To the
extent that law’s usefulness depends on its institutional resources, the
nature and quality of its institutions will be critical. For instance, the fact
that courts are used so little for handling tort claims suggests that they are
of very limited use in resolving tort disputes. In practice, the markets in
insurance and legal services are much more useful. There is an important
general point here. Few, if any, of the uses of law belong to it uniquely.
For some purposes, law may be particularly useful but it is rarely, if ever,
the only tool available for any particular use; and when law does not
deliver, we may reach for other tools.
2. ALLOCATING RISK
As we saw in Chapter 4, tort law defines negligence as failure to take

precautions against risks involved in human activities and conduct.
Negligence is faulty creation of risks. Sometimes, non-faulty creation of
risks can be tortious. When risky conduct results in damage, tort law allo-
cates the risk by allocating the burden of bearing the cost of the damage.
However, tort law sometimes allocates risk regardless of damage—for
instance, when it defines trespass to land merely in terms of entering
the land. By doing so, it allocates the risk of unauthorised entry to the
entrant rather than the person in possession of the land.
Remedying Damage 113
By allocating risks, tort law gives effect to value judgements of law-

makers about how risks ought to be allocated. As was argued in Chapter 8,
decisions about how to allocate risk are political and social. However, the
law may also allow individuals to agree amongst themselves to allocate
risks differently than tort law does. The main vehicle used for this pur-
pose is contract and, in particular, what are known as ‘exclusion clauses’ or
‘exemption clauses’ in contracts. The extent to which tort law’s allocation
of risk may be varied by contract is itself regulated by law. For instance
(as we have seen), the law does not allow an exclusion clause to be used
to shift the risk of negligently-caused personal injury from the harm-
doer to the harm-sufferer (Unfair Contract Terms Act 1977, section 2(1)).
Sometimes tort law itself provides for variation of its own initial allocation
of risk. For example, tort law allows an occupier of land, in certain circum-
stances, to post a notice warning visitors of a danger on the land. In the
absence of the notice, the risk of damage resulting from the danger would
be allocated to the occupier. The effect of the notice may be to reallocate
the risk from the occupier to the visitor (but not in the case of negligently-
caused personal injury: Unfair Contract Terms Act 1977, section 2(1)).
Another way in which tort law allows reallocation of risks is through the
defence of consent, which plays a crucial role, for instance, in shifting
risks inherent in medical treatment from medical practitioners to patients
(for more on this see, for example, Giliker and Beckwith 2011, 350–54).
3. REMEDYING DAMAGE
To the extent that tort law allocates the risk of damage to harm-doers, its
institutional resources enable its use to provide remedies for the damage
caused, typically in the form of compensatory damages. In Chapters 4
and 5 we saw how tort law allocates risks of damage (physical and
mental injury, property damage, financial loss and so on). In Chapter 7
we discussed tort law’s rules about compensatory damages (under the
various ‘heads of damages’) and considered the role of courts—law’s
remedial institutions—in providing remedies (by exploring the settlement
process). There is no need to review those discussions here.
How effective is tort law—doctrine and institutions—in remedying
damage the risk of which the doctrine allocates to harm-doers? C
onsidering
that there are around a million, successful personal-injury tort claims in
England each year and, no doubt, many more successful property-damage
114 Uses
claims (for more on this see Cane 2013, 215–16), we might conclude that
it is very effective. However, we do not know what proportion of the total
number of potentially successful tort claims is represented by the body
of claims that are made and succeed. We do know that in some contexts
(such as accidents in the home), personal injury tort claims are very rarely
made, despite the fact that more reported personal injuries result from
accidents in the home than from accidents on the roads. It is reasonable
to speculate that a significant proportion of personal injury caused in the
home could, in theory, be the subject of a successful tort claim. However,
for various reasons, such claims are rare (for more see Cane 2013, 206–07).
Even amongst successful claims, there is some reason to think that in a
significant proportion, especially of the more serious cases, the amount of
damages actually received by the harm-sufferer is less than a strict appli-
cation of tort doctrine would require (for more see Cane 2013, 282–84).
As we saw in Chapter 7, this is because most claims are settled, and the
outcome of settlement negotiations, while inevitably influenced by tort
doctrine, may not represent a strict application of the rules.
The effectiveness of tort law in remedying damage depends not only
on what proportion of potentially successful tort claims are made and
succeed but also on how many successful claims ought not, on a strict
application of tort doctrine, to have succeeded at all or to the extent that
they did. Once again, because of the dynamics of the settlement pro-
cess, there is reason to believe that some proportion of successful claims
ought not to have succeeded and that, in a certain proportion of cases
(especially the less serious), the damages paid were greater than a strict
application of tort doctrine would justify.
Of course, whether such gaps between the doctrine and the practice
are cause for criticism or concern depends on an assessment of the pro-
cess as a whole, and its overall costs and benefits. The only point being
made here is that the tort doctrine in the books is only the tip of the
iceberg we call ‘the tort system’.
4. PREVENTING DAMAGE
One of the purposes that tort law is most commonly employed to

promote is ‘deterrence’ of tortious conduct and prevention of tortious
damage. This is the realm of what, in Chapter 8, was referred to as the
Preventing Damage 115
politics of regulation. Tort claimants often refer to this use of tort law
when they say things like: ‘it’s not really the damages I want; I’m doing
this to prevent the same thing happening to anyone else in the future’.
The basic idea behind deterrence is that by establishing rules and stand-
ards of conduct and by attaching the remedy of damages (or, in the case
of harm-sufferers, a reduction of damages) for failure to satisfy those
standards and rules, the law can provide incentives for safe conduct and
educate people about safety. Despite quite a lot of evidence, we know
relatively little for certain about the deterrent effectiveness of tort law and
tort liability. However, some general comments may be ventured.
The effectiveness of tort law as a deterrent depends partly on iden-
tifying, and imposing liability on, parties who are able, by taking care,
to prevent damage occurring. The less we know about the causes of
accidents and injuries, the less will we be able to use tort law as a means
of establishing standards of safety. This problem is particularly acute in
respect of illnesses and diseases, as opposed to traumatic personal inju-
ries ( Stapleton 1986, chapter 4). It is, no doubt, easier to deter deliberate
conduct than it is to deter merely negligent conduct—for instance, easier
to deter a surgeon from operating on a patient without his or her consent
(by making consent available as a defence) than to deter the surgeon from
making a negligent mistake in the course of the operation (by imposing
a legal duty of care on surgeons). The risk of liability is no doubt a factor
in deterring newspapers from publishing material that they realise might
be defamatory (Barendt 1997). This doesn’t mean that people cannot be
deterred from negligent conduct. For instance, even if it is not feasible to
deter a drunk from dangerous driving once behind the wheel, it may be
possible to deter a person from drinking too much before driving.
Even so, there appear to be major barriers to the effective use of tort
law and the risk of tort liability to prevent damage. Because most people
know relatively little about tort law and will have had no direct experi-
ence of tort claiming, few may see tort liability as a serious possibility.
Drivers, for instance, are perhaps more likely to take care out of concern
for their own safety, or to avoid the risk of incurring a fine or driving
disqualification, than by the risk of incurring tort liability. Professional
pride, personal values, or potential loss of reputation and livelihood, may
give surgeons stronger incentives to operate with care than tort law can
provide. On the other hand, it is often argued that fear of tort liability
may ‘over-deter’ professionals and cause them to take unnecessary and
ineffective precautions (called ‘defensive practice’).
116 Uses
Tort law may also be used to encourage potential harm-sufferers to

take care for their own safety by reducing damages on account of con-
tributory negligence. However, if a person’s instinct for self-preservation
does not deter them from dangerous conduct it is, perhaps, unlikely that
a denial of monetary or other assistance will do so. Criminal law may
provide stronger incentives than tort law. The history of seat-belt usage
provides a good illustration. During the period 1973–80 only about
30 per cent of drivers and front-seat passengers wore seat belts, despite
the risk of receiving reduced damages if injured while not wearing a belt.
In 1983, subject to limited exceptions, it became a criminal offence for a
driver or front seat passenger not to wear a seat belt if provided. With the
help of vigorous enforcement, the compliance rate rose to 95 per cent for
cars and over 80 per cent for vans.
What is the likely impact of widespread, and often compulsory, liabil-
ity insurance on the deterrent effect of tort law? It is universally accepted
that liability insurance, although essential for realising tort law’s com-
pensatory potential, greatly reduces its deterrent efficacy. For instance,
drivers who are not discouraged from taking careless risks by concern for
their own safety or that of passengers in the car, nor by fear of the crimi-
nal law, nor by fear of being disqualified from driving, are not likely to be
deterred by the risk of being sued in a tort action in which the damages
will be paid by an insurance company. In some contexts, insurers attempt
to counteract the negative incentive signals given by insurance (called
‘moral hazard’) by requiring insureds, under the terms of insurance poli-
cies, to take certain precautions and even checking up whether they have
been taken. However, this is not done in the road accident context. Other
techniques used by insurers to combat moral hazard include ‘feature
rating’ (for instance, charging younger drivers higher premiums than
older drivers), ‘experience rating’ (in the form of no-claims bonuses) and
‘deductibles’ (requiring the insured personally to pay a certain amount
of the claim before the insurance kicks in). Unfortunately, although the
theory underpinning such techniques is sound, there is no evidence that
they have any significant effects on the incidence of accidents.
5. PUNISHING WRONGDOING
Punishing wrongdoers and expressing disapproval of wrongdoing is one

of the main uses of the criminal law. The ‘conventional wisdom’ is that tort
Doing Justice 117
law should not be used to punish tortious wrongdoers. English tort law
defines narrowly the circumstances in which ‘punitive damages’ are recov-
erable in a tort action (Rookes v Barnard [1964] AC 1129). Unless there is
express statutory authority, punitive damages can be awarded in only two
situations: first, where a person or body exercising governmental powers
has been guilty of arbitrary, oppressive or unconstitutional conduct; and,
second, where the wrongdoer has sought to make a profit out of the tort.
The main arguments against punitive tort damages are that they amount
to a criminal fine, but one that is imposed without the procedural safe-
guards for defendants which are built into the criminal process (such as
proof beyond reasonable doubt); and that damages that do not represent
any harm suffered by the claimant are a ‘windfall’, and so unjustifiable.
In the US, by contrast, punitive damages are sometimes awarded
against corporate defendants, especially in unfair competition, product
liability and environmental pollution cases. Some in this country have
urged that punitive damages be more widely available in personal-injury
actions, particularly those in which corporate or governmental defend-
ants have been seriously and culpably inattentive to the safety of mem-
bers of the public. The English Law Commission once recommended
that punitive damages should be available in cases where the wrongdoer
showed ‘deliberate and outrageous disregard of the claimant’s rights’
(Law Commission 1997). Such a case could, in theory anyway, be a case
of death or personal injury; but it is likely that such a rule would have
no impact on the vast majority of personal-injury claims. On the other
hand, it would make punitive damages available in some types of case in
which they cannot currently be awarded: where, perhaps, an employer
deliberately cuts corners on safety for the sake of profit.
6. DOING JUSTICE
Some people describe the chief purpose and use of tort law in terms of
doing (‘corrective’) justice between wrong-doers and wrong-sufferers.
By awarding compensation, it is said, the law aims to restore and redress
the balance of fairness or justice that the wrong-doer has upset by t ortious
conduct. There is a huge modern literature on ‘corrective justice’ in tort
law, and it contains many different definitions of the concept. However,
the basic idea behind it is quite straightforward, and is fundamental to
understanding tort law.
118 Uses
Every tort claim involves a harm-sufferer seeking some remedy from

a harm-doer on the basis that the harm suffered was a result of tortious
conduct by the harm-doer. The use of tort law for purposes other than
doing corrective justice between harm-doers and harm-sufferers is nec-
essarily constrained by the fact that tort liability depends on responsibil-
ity for harm to another. For instance, tort law compensates people for
losses, but only if responsibility for those losses can be pinned on some
other individual. We may seek to use tort law to reduce accident levels;
but even if tort law is effective in reducing accidents, its effect is limited
by the fact that it is only concerned with accidents that result in damage
for which someone other than the harm-sufferer is responsible. We can
use tort law to punish people, but only those responsible for tortiously
harming others.
One way of putting this point is to say that doing corrective justice is
an intrinsic, rather than a merely contingent, function of tort law because
every tort has two main elements—protected interests of one person and
harmful conduct of another that interferes with those interests—and in
every tort claim a harm-sufferer claims a remedy from a harm-doer on
the basis of the relationship between the wrong done and the harm suf-
fered. Some people go further and argue that doing corrective justice is
not merely one of the things tort law can be used for but rather what it
does naturally. I would rather say that tort law’s possible uses are limited
and constrained by its ‘corrective structure’.
7. PROVIDING VINDICATION
In cases where tort remedies are available regardless of whether the

harm-doer has inflicted any damage on the harm-sufferer (where the tort
is ‘actionable per se’), we may say that tort law can be used to vindicate
rights (Varuhas 2014).
In a more colloquial sense, making a successful tort claim may provide
a sense of vindication or satisfaction through an award of compensa-
tory or punitive damages. There is evidence that some tort claims against
hospitals and doctors are a response to failure by the harm-doer to
apologise rather than a desire to be compensated. In one case, the estate
of a man shot by the police in mistake for a dangerous criminal was
allowed to sue the police for ‘battery’ (ie for the shooting) even though
Providing Vindication 119
the police had admitted liability for negligence and were prepared to
settle out of court, and in full, his family’s claim for financial loss, with
the result that success in the battery claim would attract no additional
compensation but, at most, an award of ‘nominal damages’ (Ashley
v Chief Constable of Sussex Police [2008] 1 AC 962).
Tort claims that go to court may attract media attention that may
be used to hold wrongdoers publicly accountable. However, most tort
actions attract very little publicity even if they go to trial; and (as we
saw in Chapter 7), the vast majority are settled out of court by private
agreement. Settlement agreements typically contain clauses by which
the claimant agrees not to publicise the grounds or terms of the settle-
ment. Furthermore, settlements are typically made ‘without admission
of liability’ on the part of the harm-doer, who may prefer settlement to
trial precisely in order to prevent the facts of the claim being publicised.
Another barrier to use of tort law for vindication is the rule that if the
harm-doer (or the harm-doer’s insurer) offers sufficient compensation
to the claimant by way of settlement of the claim, but the claimant rejects
the offer and insists on a trial out of a desire for public vindication, they
will normally have to pay the costs of the hearing (Cane 2013, 277–79).
It has been argued that tort law can be used as a public grievance
mechanism similar to a complaint to an ombudsman, especially in cases
against public authorities or large corporations (such as drug compa-
nies or transport undertakings) whose actions have caused widespread
damage or injury to many people (Linden and Feldthusen 2015, 23–31).
In such cases a tort claim may serve as much to establish responsibility
and to vindicate feelings of outrage and grief as to obtain compensation.
120
10
The Political Economy
of Compensation Schemes
KI 8: Tort law is not the only game in town
Tort law has its uses. None is unique to tort law. Doing (corrective) justice
is distinctive but is shared by contract law, for instance: and as we saw
in Chapter 6, some torts are also breaches of contract. Over the past
50 years there have been ongoing public and scholarly debates about
alternatives to tort law for performing two of its major uses: compensat-
ing for personal injuries and preventing accidents that cause personal
injury; compensation and deterrence.
Reviewing the discussion in Chapter 8 will remind you that writers
such as Calabresi, Ison and Atiyah found tort law wanting as both a com-
pensation mechanism and a deterrent. Calabresi argued that to be suc-
cessful as a deterrent, tort law would have to allocate the cost of personal
injuries to the ‘cheapest cost avoider’ rather than on the basis of fault.
Tort law’s concept of fault, he concluded, did not accurately identify the
cheapest cost avoider. Concerning compensation, tort law came in for
criticism on several fronts. First, it was argued, tort law’s use of fault as
the main criterion for entitlement to compensation created an unjusti-
fied distinction between people who suffered personal injury as a result
of faulty conduct and others who did not and who, therefore, were not
entitled to tort compensation, and either had to bear the cost of the inju-
ries themselves or be satisfied with relatively modest social security pay-
ments. Second, it was suggested that because of the way the settlement
process worked, in a significant proportion of cases the compensation
received by the injured person was either too much or too little judged
against the rules of tort law about assessment of damages.
In the 1960s and 1970s, a common conclusion was that tort law’s
shortcomings were so serious that the way forward was not to attempt
122 Political Economy of Compensation Schemes
to reform tort law, however radically, but rather to abolish it as a mech-

anism for deterring accidents and compensating accident victims, and
replace it with more effective tools. On the compensation side, the com-
monly favoured replacement was some form of social security scheme
funded by taxation and calculated according to the needs of the injured.
As we saw earlier, in the late 1990s, Atiyah changed his mind about this
and favoured a system in which compensation would be funded by pri-
vate insurance rather than public welfare. On the deterrence side, one
idea was a system of ‘non-insurable tort fines’, penalties that would be
imposed, like criminal fines, on the parties best placed to prevent acci-
dents cheaply, and paid into a fund from which harm-sufferers would be
compensated.
As we also noted earlier, social-security-type, ‘no-fault’ compensation
schemes funded by taxation were introduced quite widely around the
world in the 1970s and 1980s. Most related to road accidents or medical
accidents. The most extensive, in New Zealand, covered all accidental
injuries. In some cases, the no-fault scheme completely replaced tort law
and the tort system in the area of its operation; but in others, the new
scheme operated alongside the tort system as a sort of supplement or even
competitor. In general, there was little concern that replacing the tort sys-
tem (at least in the personal-injury accident context) would significantly
reduce the incentives for potential harm-doer’s to take care because it
was accepted on all sides that tort law (backed up by pervasive liabil-
ity insurance) was an extremely inefficient deterrent. In New Zealand,
following the introduction of the accident compensation scheme, some
concerns about standards of care in medical treatment were addressed by
tightening the legal regulation of the medical profession. On the whole,
however, policy-makers and law-makers have not felt the need to take
tort law and the tort system seriously as deterrents, to reform them to
improve their performance as deterrents, or to provide new deterrents
in situations where tort law has been abolished. In the main, they have
looked to systems of licensing, regulation and inspection backed up by
criminal prosecution to provide the prime tools of safety and accident
prevention. This is not to say that tort law is totally useless as a deterrent,
and accident prevention is still routinely cited in the scholarly literature
and public debates as one of tort law’s significant uses. However, policy-
makers have treated tort law primarily as a compensation mechanism,
and it is in that guise it will be discussed in this chapter.
Fault, Strict Liability and ‘No-Fault’ 123
There are various parameters of the design of ‘compensation s ystems’,

and we will look at four of these briefly in turn. Notice that in this chap-
ter, the word ‘compensation’ has a different meaning than in previous
chapters. Up until now, it has been used to describe damages for harm
inflicted, calculated under the various ‘heads’ of damages according to
the full compensation and cost-of-living principles. Here, ‘compensation’,
as in the term ‘compensation system’, refers to any monetary payment,
however calculated, made on account of harm suffered.
1. FAULT, STRICT LIABILITY AND ‘NO-

FAULT’: TORT AND SOCIAL SECURITY
The main criterion used in tort law to allocate responsibility for personal
injuries is fault. Strict liability, regardless of fault, is rare. A shift from
fault to strict liability in a compensation scheme increases the size of the
pool of potential beneficiaries of the scheme. In theory, too, it reduces the
cost of delivering compensation by doing away with the potentially very
expensive process of establishing fault. However, both criteria of alloca-
tion require proof of a causal connection between the harm-doer’s con-
duct and the harm suffered, which may be very costly to provide.
In a ‘no-fault scheme’, the nexus between harm-doing and harm-
suffering, which is intrinsic to tort law, is broken. It is not necessary, in
order to obtain compensation for harm, for claimants to establish a causal
connection between the harm and conduct of any individual. Compen-
sation is paid out of a fund, typically financed by some form of taxation.
Tax liability may attach to the conduct of some risky activity (as in the
case of petrol levies) regardless of whether it causes harm, or to earning
income or owning property, for instance. In England, most social secu-
rity benefits that are triggered by harm-suffering (such as benefits for the
sick and disabled) are no-fault in this sense. It follows that the coverage
of the social security system of compensation for personal injury is much
greater than that of the tort system because the claimant does not have
to establish that the harm was caused by the conduct of anyone. It is the
harm-suffering as such that attracts compensation, whereas under the
tort system, harm-suffering attracts compensation only where it results
from the conduct of an identifiable individual.
Because the coverage of the social security system of compensation

for personal injuries is wider than that of tort, the two systems overlap.
This is important because it takes relatively much longer to process tort
claims than social security claims (as a result, for instance, of the need
to prove fault and causation in a tort claim), and the harm-sufferer
may receive social security benefits to cover living and other costs long
before they recover tort damages. Also, of course, harm-sufferers will
typically need and receive medical, hospital or nursing care immedi-
ately, typically free via the NHS and other publicly-funded services.
If the harm-sufferer makes a successful tort claim, the damages assessed
will include amounts to cover the costs already covered by social secu-
rity benefits and the value of publicly-funded care. Such amounts are
payable by the harm-doer directly to the government and not to the
harm-sufferer. In this way, costs of accidents borne initially by the pub-
lic purse are ultimately transferred to parties liable in tort and through
them, via liability insurance, to a large group of potential harm-doers.
To a significant extent, these ‘claw-back’ arrangements prevent ‘double
compensation’.
In less serious cases, a combination of social security benefits and
NHS services may cover all the harm-sufferer’s losses, thus removing any
incentive to make a tort claim, even assuming that such a claim would
succeed. In more serious, and especially the most serious, cases, the total
amount of compensation recoverable in a tort action may greatly exceed
the total amount available via social security plus the value of free NHS
and social-care services. The more serious the case, the longer it is likely
to take to bring the tort-claiming process to a successful conclusion.
For this reason, harm-sufferers may be more-or-less dependent for a
considerable period on social security benefits and publicly-funded care.
This means that even though the cost of social security support and free
care will ultimately be transferred to harm-doers, the tort system could
not operate as it does without supplementation by the social-security
and public-care systems.
In the ‘political economy’ of personal injury compensation, both
the tort system and the social security/care systems play a crucial role.
The tort system is particularly important in providing in more seri-
ous cases compensation greater than the public system can provide.
The public system is particularly important for dealing with many less
serious cases and for supporting the more seriously injured pending the
completion of the tort process.
Cause Versus Harm 125
2. CAUSE VERSUS HARM: TORT AND THE

INDUSTRIAL INJURIES SCHEME
Fault-based and strict-liability compensation regimes (such as tort law)

require proof of a causal connection between harm suffered and harm-
doing by a responsible individual. No-fault compensation schemes do
not. In between are what we might call ‘activity-based’ compensation
schemes. In England, the Industrial Injuries Scheme within the social
security system provides an example. In the nineteenth century, in
response to great increases in workplace injuries as a result of the Indus-
trial Revolution, tort law developed various rules that made it difficult
for employees to recover damages from employers for harm caused in
the workplace. The first response to the pro-employer stance of tort law
was the introduction, in the late-nineteenth century, of a statutory work-
ers’ compensation scheme. This scheme imposed, on employers, liability
without fault for workplace injuries. Claimants did not have to prove that
the injuries were the result of tortious conduct by the employer, but did
have to prove that they arose ‘out of and in the course of employment’.
In 1946 workers’ compensation was replaced by the Industrial Injuries
Scheme (IIS) within the social security system. The IIS was given dis-
tinct status within the broader system partly because benefits under the
IIS were more generous than other social security benefits. These higher
benefits were paid in cases that arose ‘out of and in the course of employ-
ment’. Whereas workers’ compensation had been designed as a substitute
for employers’ tort liability to overcome its anti-employee bias, by 1946
changes in tort law had redressed the balance; and the question arose of
whether the employers’ liability tort system should be allowed to operate
alongside the IIS. After much debate, the question was resolved positively.
Since 1946, the generosity of the IIS relative to non-industrial social secu-
rity has been whittled away to the point where the relationship between
employers’ liability tort law and the IIS is similar to that between tort law
and social security explored in the previous section.
Another activity-based, publicly-funded compensation scheme is the
Criminal Injuries Compensation Scheme (CICS). However, unlike the
IIS, the CICS is, in an important sense, a fault-based scheme: claimants
must prove that their injuries result from a criminal offence, although
they do not have to be able to identify the responsible criminal offender.
The CICS also differs from the IIS in that compensation is assessed
according to principles loosely derived from the rules for assessment
of tort damages. However, in many cases, CI compensation will be sig-
nificantly less than compensation calculated according to the tort rules.
Unlike employers, however, criminals are rarely worth suing in tort, and
so the relationship between the CICS and the tort system is different from
that between the social security and tort systems. In certain types of case,
criminal courts have jurisdiction to make ‘criminal compensation orders’
against convicted offenders. These tend to be very small and are set off
against compensation recovered under the CICS. For these reasons, the
CICS, much more than the IIS, operates as a substitute for or an alterna-
tive to the tort system in the area of its operation.
3. LOSS, NEED AND MEANS-TESTING
As we saw in Chapter 7, the concept of compensation in the tort system

can be summed up in the ‘full compensation’ and ‘standard-of-living’
principles. It focuses, we might say, on what the harm-sufferer has ‘lost’
by comparing the claimant’s position before the harm was suffered with
their present, and likely future, position as a result of the tort. Compen-
sation under the CICS is modelled on tort compensation in the sense of
focusing on loss inflicted, but is much less generous because it is not ‘full’
in the tort sense, nor does it aim to maintain the injured person’s pre-
injury standard of living. Compensation under the IIS has one tort-like
element: ‘disablement pensions’ represent non-pecuniary loss caused by
the injuries, and are calculated using a sliding scale of fixed amounts that
vary according to the severity of disablement.
Apart from disablement pensions, social security benefits are designed
either to replace income or to meet additional costs of disablement.
Income-replacement benefits are ‘flat-rate’—meaning that they are unre-
lated to the claimant’s pre-injury income—and may be means-tested
in favour of the poorest claimants. Benefits to meet additional costs of
disablement are generally flat-rate and unrelated to the actual costs
incurred by the injured person; they may also be means-tested. One way
of describing these basic differences between tort compensation and
social security compensation is to say that the former addresses ‘loss’
whereas the latter addresses ‘need’.
Social and Private Insurance 127
4. SOCIAL AND PRIVATE INSURANCE
As we saw in Chapter 7, the tort system of compensation for personal

injuries is mainly funded by liability insurance, which spreads the cost
of liability amongst a group of potential harm-doers, and is provided
by the ‘private’ insurance market. Another relevant form of insurance
protects harm-sufferers from the risk of harm by spreading it amongst a
group of potential harm-sufferers. Common examples of ‘loss insurance’
provided by the private insurance market include life insurance, super-
annuation (retirement insurance), travel insurance and health insur-
ance. In the terms we have been using in this chapter, all these types of
insurance provide no-fault, cause-based compensation. There are com-
plex rules of tort law, about the interaction between such forms of com-
pensation and the tort system, designed to prevent ‘over-compensation’
in cases where a harm-sufferer is entitled to both tort compensation and
a private-loss-insurance payment.
Loss insurance may also be provided ‘publicly’. As originally designed,
the funding of the social security system (including the IIS) was primarily
based on the insurance principle—entitlement to benefits depended on
a person’s record of payment of ‘national insurance contributions’ out of
wages. Now, most social security benefits, including those paid under the
IIS to workers and ex-workers, are funded by various forms of taxation,
not by payment of work-related national insurance contributions.
The sorts of compensation schemes described in this chapter are
typically presented in tort books as ‘alternatives’ to tort. However, since
they each have distinctive rules about entitlement to, and assessment
and funding of, compensation—in short, because each embodies a dif-
ferent concept of compensation—and because they all differ in these
respects from the rules of tort law and tort law’s concept of compensa-
tion, it is better to think of them as components of a ‘political economy’
of personal injury compensation systems that interact in various com-
plex ways.
128
11
The Future of Tort Law
KI 9: Tort law is here to stay—live with it!
In 1970s England there seemed to be a real chance that as a tool of

compensation for personal injuries, tort law would be abandoned and
replaced with something else. If this had happened, the province of tort
law would have shrunk dramatically, chiefly providing protection against
interference with property and property-like interests and certain types
of investment losses (as happened in New Zealand after the introduc-
tion of a broad Accident Compensation Scheme). Today, by contrast,
tort law is a firmly entrenched sector of the thriving political economy
of personal injury compensation, playing a crucial part, alongside
publicly-funded welfare and privately-funded insurance, in dealing with
the personal and social disruption caused by death and disablement. And
yet all the defects in the system that led reformers 50 years ago to conclude
that tort performed both of its main uses (compensation and deterrence)
badly, and less well than other available mechanisms, still exist now.
Half a century ago, the burning question was how to live without tort law.
Now, the important question for those who think that the tort system has
serious, endemic and structural flaws, is how to live with it, because it
gives no sign of going anywhere anytime soon.
Features of the tort system that have attracted, and continue to attract,
most criticism include the following:
—— The legal and administrative costs of delivering each £ of tort com-
pensation (30–45 pence) are much higher than those of delivering
each £ of social security benefit (10–15 pence). Major reasons for
the cost differential are the cost of proving fault and causation, and
of assessing damages on an individualised basis (instead of using
standardised ‘tariffs’). Put differently, the administrative costs of a
130 The Future of Tort Law
system of liability-with-liability insurance are likely to be relatively

much higher than those of a no-fault system funded by taxation, or
public or private loss insurance.
—— In tort, the less serious the injuries suffered, the greater the d
amages
recovered tend to be as a proportion of the loss suffered; and
conversely, the more serious the injuries, the less the damages as a
proportion of the loss suffered. This is mainly because of the way
the process of negotiating a settlement typically works, not because
the rules of assessment of tort damages require it. By contrast,
in theory and in practice, the social security system tends to treat
the more seriously disabled relatively more generously than the less
seriously disabled.
—— Relative to the injuries suffered, tort damages tend to be, in aggre-
gate, much higher than social security benefits.
—— Relative to social security claims made by the injured and disabled,
tort claims probably represent a much smaller proportion of the
total number of theoretically possible claims. Put differently, the
‘take-up’ of social security benefits is probably much higher, rela-
tively, than the take-up of tort damages. This is partly because of
the difficulty of proving fault and causation in many cases, espe-
cially cases of illness and disease as opposed to traumatic injuries;
and partly because of the patchy incidence of compulsory liability
insurance.
In assessing such criticisms, it is important to remember that the basic

rules and principles of tort law were developed long before the social
security system, in its modern form, came into existence. The tort sys-
tem embodies ideas of individual, interpersonal justice whereas the
social security system is based on ideas of social justice. Some people
would argue that the value, in terms of interpersonal justice, of a system
of liability-with-liability insurance as compared with a no-fault system
supported by loss insurance, equals or outweighs its disadvantages and
justifies its costs. At the same time, it is worth noting that many who
celebrate the ‘justice’ of the tort system do not oppose the replacement
of tort with no-fault. Others argue that the costs of the tort system are
acceptable given tort law’s value as a deterrent.
However these various arguments are assessed, the current mixed
economy of personal injury compensation will probably remain in place
for the foreseeable future, with liability and no-fault regimes existing side
The Future of Tort Law 131
by side in complex interaction. Even so, it might be worth considering

possible changes to tort law that might meet some of the most serious
criticisms. So far as causation is concerned, a move from fault-based
to strict liability for personal injuries might reduce the cost of proving
causation. Under a strict liability regime, causation requires the claim-
ant only to connect harm to a broadly delineated activity and not some
narrowly identified act or omission occurring in the course of engaging in
the activity. As we have seen, no-fault regimes may also be activity-based
and require proof of causation in this sense. Nevertheless, although a no-
fault regime may be cause-based, it need not be. By contrast, causation is
of the essence of tort law because without it, tort law could not distribute
risks and harms in the way it does. A regime that was not cause-based
would not be a tort regime.
Because proving fault can be very expensive and time-consuming,
a shift to strict liability could also reduce the cost of the tort system.
Of course, strict liability distributes risks and losses differently from a
fault-based regime. The political question is whether the potential cost
savings from such a move would justify changing the standard of liability.
This issue has been much discussed over the years, but may deserve
further consideration.
Besides causation, another definitional characteristic of tort law
and the tort system is that they compensate for losses; but, of course,
they share this feature with all ‘compensation systems’. Tort compensa-
tion differs from compensation as defined in other systems in that it is
designed to stabilise people’s expectations about how their life will go.
It does this by putting the injured person back into the position they were
in before they were injured, as far as money can do (let’s call this compen-
sation as ‘restoration’). De-stabilisation of the financial life-expectations
of harm-doers is prevented in most cases by liability insurance. Without
pervasive liability insurance, the tort system, as it operates today, would
be neither feasible nor (arguably) palatable.
Why should the goal of tort law be to stabilise expectations? After all,
this, generally, is not the goal of no-fault compensation systems. Aban-
donment of the restoration principle does not necessarily reduce the
overall costs (made up of the compensation plus the cost of delivery) of a
compensation system because any reduction in unit cost may be counter-
balanced by an increase in demand—ie in the volume of claims. We have
noted that there is reason to think that no-fault systems compensate a
greater proportion of eligible claimants than the tort system. If the unit
132 The Future of Tort Law
costs of the tort system could be significantly reduced, this might allow
the tort system to compensate a greater proportion of potential claim-
ants. There is a (political) trade-off here, of course; but it may be one
worth considering if only because the value of the restoration principle
is rarely debated, even though it was adopted in the mid-nineteenth
century, before the existence of either the welfare state or liability insur-
ance. One down-side (in theory, at least) of abandoning the commitment
to restoration might be reduction in tort law’s deterrent efficacy.
The restoration principle requires compensation to be assessed in
every case according to all the circumstances of that case. This is an
important factor in the high cost of the tort system. A move away from
the restoration concept might allow less individualisation of compensa-
tion and more use of ‘tariffs’ that group cases into broad categories that
can be applied with less detailed fact-finding. This, too, would reduce the
administrative cost of the tort system.
This brief discussion raises a host or important, complex and d ifficult
issues (for more see Cane 2007, especially chapter 3); but it is time to
stop! We have come a long way from the legal doctrine with which
we started, proving to you (I hope) the value of this book’s ORBI
(see page 2): tort law is an authority-based phenomenon that can be,
and is best, understood both ‘from the inside’ as an authoritative source
of guidance about how to behave and also ‘from the outside’, taking into
account tort law’s character as law, the political and social environments
in which tort law operates, tort law’s uses, and its competitors.
BIBLIOGRAPHY
Atiyah, PS (1970) Accidents, Compensation and the Law (Weidenfield & Nicolson).
Atiyah, PS (1997) The Damages Lottery (Hart Publishing).
Barendt, E et al (eds) (1997) Libel and the Media: The Chilling Effect (Oxford
University Press).
Barker, K, Cane, P, Lunney, M and Trindade, F (2012) The Law of Torts in Australia
5th edn (Oxford University Press).
Calabresi, G (1970) The Costs of Accidents (Yale University Press).
Cane, P (2003) ‘Reforming Tort Law in Australia: A Personal Perspective’
27 Melbourne University Law Review 649.
—— (2004) ‘The Doctor, the Stork and the Court: A Modern Morality Play’
120 Law Quarterly Review 23.
—— (2007) The Political Economy of Personal Injury Law (University of
Queensland Press).
—— (2013) Atiyah’s Accidents, Compensation and the Law 8th edn (Cambridge
University Press).
Descheemaeker, E (2009) The Division of Wrongs: A Historical Study (Oxford
University Press).
Galanter, M (1974) ‘Why the “Haves” Come out Ahead: Speculations on the
Limits of Legal Change’ 9 Law and Society Review 95.
Gardner, J (2012a) Law as a Leap of Faith (Oxford University Press).
—— (2012b) ‘Criminals in Uniform’ in Duff, RA et al (eds) The Constitution of
Criminal Law (Oxford University Press).
Giliker, P and Beckwith S (2011) Tort 4th edn (Sweet & Maxwell).
Goodin, RE (1989) ‘Theories of Compensation’ 9 Oxford Journal of Legal
Studies 56.
—— (1995) Utilitarianism as a Public Philosophy (Cambridge University Press).
—— (2010) ‘An Epistemic Case for Legal Moralism’ 30 Oxford Journal of Legal
Studies 615.
Hart, HLA (1961) The Concept of Law (Clarendon Press).
Honoré, T (1988) ‘Responsibility and Luck: The Moral Basis of Strict Liability’
104 Law Quarterly Review 530.
—— (1991) ‘Are Omissions Culpable?’ in Cane, P and Stapleton, J (eds), Essays
for Patrick Atiyah (Oxford University Press).
134 Bibliography
—— (1993) ‘The Dependence of Morality on Law’ 13 Oxford Journal of Legal

Studies 1.
Ison, T (1967) The Forensic Lottery (Staples Press).
Law Commission for England and Wales (1997) Aggravated, Exemplary and
Restitutionary Damages Law Com No 227.
Linden, A and Feldthusen, B (2015) Canadian Tort Law 10th edn (LexisNexis
Canada).
McBride, NJ and Bagshaw, R (2015) Tort Law 5th edn (Pearson Education).
Mullany, NJ and Handford, PR (2006) Tort Liability for Psychiatric Damage
2nd edn (Law Book Company).
Mulheron, R (2016) Principles of Tort Law (Cambridge University Press).
Posner, RA (1973) Economic Analysis of Law (Little, Brown and Co).
Ripstein, A (2016) Private Wrongs (Harvard University Press).
Scanlon, TM (1998) What We Owe to Each Other (Harvard University Press).
Sorabji, J (2014) English Civil Justice after the Woolf and Jackson Reforms
(Cambridge University Press).
Stapleton, J (1986) Disease and the Compensation Debate (Oxford University
Press).
—— (1994a) Product Liability (Butterworths).
—— (1994b) ‘In Restraint of Tort’ in Birks, P (ed), Frontiers of Liability (Oxford
University Press).
Stevens, R (2007) Torts and Rights (Oxford University Press).
Stone, R (2016) ‘Legal Design for the “Good Man”’ 102 Virginia Law Review 1767.
Varuhas J (2014) ‘The Concept of “Vindication” in the Law of Torts: Rights,
Interests and Damages’ 34 Oxford Journal of Legal Studies 253.
Weinrib, EJ (1995) The Idea of Private Law (Harvard University Press).
—— (2012a) The Idea of Private Law 2nd edn (Oxford University Press).
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TABLE OF CASES
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310��24

Allen v Gulf Oil Refining Ltd [1981] AC 1001��61
Ashby v White (1794) 6 Mod 45��27
Ashdown v Williams [1957] 1 QB 409��35
Ashley v Chief Constable of Sussex Police [2008] 1 AC 962��119
Attia v British Gas [1988] QB 304��23
Barber v Somerset CC [2004] 1 WLR 1089��24
Bernstein v Skyviews & General Ltd [1978] QB 479��60
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582��43
Caparo Industries Plc v Dickman [1990] 2 AC 605��54, 68
Cassidy v Ministry of Health [1951] 2 KB 343��56
Corr v IBC Vehicles Ltd [2008] 1 AC 884��48
Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333��41
Donoghue v Stevenson [1932] AC 562�� 16, 18, 37, 54,
76, 81, 102
Fairchild v Glenhaven Funeral Services [2003] 1 AC 32��91
Goldman v Hargrave [1967] 1 AC 645��44
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465�� 35, 50, 68
Holgate-Mohammed v. Duke [1984] AC 437��59
Hotson v East Berks HA [1987] AC 750��92
Hunter v Canary Wharf Ltd [1997] AC 655��30
John Trenberth v National Westminster Bank Ltd (1980) 39 P & CR 104��30
Kaye v Robertson ([1991] FSR 62��26
Kelsen v Imperial Tobacco Co (of Great Britain and Northern Ireland) Ltd
[1957] 2 QB 334��30
Mansfield v Weetabix Ltd [1998] 1 WLR 1263��38
Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H)
[1996] AC 211��72
McHale v Watson (1966) 115 CLR 199��44
Miller v Jackson [1977] QB 966��61
Morris v Murray [1991] 2 QB 6��50
Nettleship v Weston [1971] 2 QB 691��43, 87
Page v Smith [1996] AC 155��24
136 Table of Cases
Reynolds v Times Newspapers Ltd [2001] 2 AC 127��58

Rookes v Barnard [1964] AC 1129��117
White v Jones [1995] 2 AC 207��32
Wilsher v Essex AHA [1988] AC 1074��91
Woollerton v Richard Costain Ltd [1970] 1 WLR 411��30

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KEY IDEAS IN TORT LAW

Key Ideas in Law: Volume 2

Recent titles in this series:

For the complete list of titles in this series, see

OXFORD AND PORTLAND, OREGON

Hart Publishing Ltd Bloomsbury Publishing Plc

1. Nine Key Ideas�����������������������������������������������������������������������������������1

competitors. From this ‘external’ perspective, authoritative legal d ­ octrine

KI 1: Tort law is law

How, you will immediately protest, can such a tautologous banality

not ‘the truth’ in any absolute or unquestionable sense. As a first thought,

probably more helpful to understand it more vaguely as reflecting some

Also, parents, carers and guardians may function as moral officials in

i­nstitutionalisation, law can give us answers to ‘moral’ questions that

KI 2: Tort law is the law of torts

Just as the proposition discussed in the previous chapter—that ‘tort law

actus reus), defences, parties to crime (corporations, accomplices and the

‘employers’ liability’ and ‘product liability’, for instance. It is this that

subject is, in an important sense, an invention of scholars with no ­official

KI 3: Each tort has two main elements:

The strategy in this chapter is to unpack the inherited causes of action

1. PROTECTED INTERESTS OF POTENTIAL

INTERESTS IN BODY AND MIND

to seek a therapeutic abortion. Furthermore, of course, tort law does not

legal protection against invasions of privacy and sexual harassment, for

claimant’s future prospects rather than to recover lost esteem. In other

CIVIL AND POLITICAL INTERESTS

Common-Law and Equitable Property

To understand the role of tort law in protecting property rights, it is

The statutory tort of infringement of a trademark effectively protects

What is ‘Interference with Property’?

To exploit property is to make use of it for one’s benefit. Examples of

Tort law may protect opportunities of receiving financial gain in

of continuing financial support by the death of another member of the

Property rights and contractual rights are wealth-producing assets; and

2. ‘COUNTERVAILING’ PUBLIC

Beside the interest in freedom of action that we all share (considered

defences to defamation claims (truth, absolute and qualified privilege,

There is another very important personal countervailing interest rec-

3. HARMFUL CONDUCT

We now turn to the other main element of the tort equation, as it

c­ onduct of both groups. Put differently, tort law plays a part in d

THE CONCEPT OF HARM AND THE REQUIREMENT

LEGAL STANDARDS OF CONDUCT

Tort law holds potential harm-doers to various different standards of

Only Voluntary Conduct Can Be Tortious

Doing something ‘automatically’ is not doing it involuntarily.

Deliberation, Intention and Recklessness

is not true: conduct can be voluntary without being deliberate. Think

value of activities, decisions about the acceptability of risks are ultimately

harm-causing activity. The pragmatic justification for this rule is that it

Conduct Neither Intentional Nor Negligent

­ entioned here. The first seeks to find a justification in some principle

the whole concept of personal responsibility, on which our sense of our-

As we have already noted, tort law is concerned with the conduct of

KI 3: Each tort has two main elements:

1. INTERESTS IN ONE’S PERSON

INTERESTS IN BODY AND MIND

claims’ based on contract are of marginal importance in the total ­picture

1. Nine Key Ideas��1

competitors. From this ‘external’ perspective, authoritative legal d octrine

institutionalisation, law can give us answers to ‘moral’ questions that

subject is, in an important sense, an invention of scholars with no official

c onduct of both groups. Put differently, tort law plays a part in d

entioned here. The first seeks to find a justification in some principle

claims’ based on contract are of marginal importance in the total picture

nauthorised exploitation, and fault-based liability for interference with

various obligations designed to protect financial interests in property.

The rules about assessment of compensatory tort damages for p ersonal