TUTORIAL 1

CHARACTERISTICS AND STRUCTURE OF TORT

AT A GLANCE

This is an introductory tutorial, which will set up your understanding of the

broad nature and characteristics of the law of tort as a whole. To begin
with, we will investigate how we might define tort law in relation to other
areas of the law and the identify some key tensions and distinctions that
emerge when we discuss how the law of tort might be structured
internally. In particular, in reading Letang, we think about the distinction
between direct and indirect injury that characterised tort historically, and
the emergence of a competing distinction between intentional and
negligent behaviour, which we see reflected in the core division between
the modern tort of trespass to the person and the central tort of
negligence which we focus on throughout the first semester.

We will have the chance to contrast some of the legal principles that make
up the law of Tort in principle with the real-world practicalities of Tort Law
in operation, as discussed by Lords Neuberger and Sumption and in the
scholarly work of Lewis & Morris. This will highlight some important
themes we will see again throughout the year.

Finally, Professor Steel’s article, whilst challenging, provides an interesting

provocation to think about as the year progresses: in seeking to answer
why tort exists at all, is it convincing to argue that it is morally necessary
to provide at least some of the rules that make up what we call Tort Law?

*Letang v Cooper [1965] QB 232

*Lord Neuberger PSC, ‘Implications of Tort Law Decisions’
https://www.supremecourt.uk/docs/speech-170513.pdf (on KEATS)
*Lord Sumption, ‘Abolishing Personal Injury Law: A Project’
https://www.supremecourt.uk/news/speeches.html#2018 (on KEATS)
*R Lewis and A Morris, ‘Tort Law Culture: Image and Reality’
(2012) 39 Journal of Law and Society 562
* S Steel, ‘On the Moral Necessity of Tort Law: The Fairness
Argument’ (2021) 41 Oxford Journal of Legal Studies 192
*Compensation Act 2006 ss1 and 2

Textbook Reading:

Winfield & Jolowicz, Chapters 1, 2, and 3

Nolan, Lunney & Oliphant, Tort Law: Text and Materials (6th ed,
2017) pp 1–24 (available online via the Tort Reading List link on
KEATS)

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FULL READING LIST

Nature of tortious liability

‘Tortious liability arises from the breach of a duty primarily fixed by

law; this duty is towards persons generally and its breach is redressible
by an action for unliquidated damages’ P Winfield, A Textbook of the
Law of Tort (Sweet & Maxwell, 1937)

‘A tort is a species of wrong. A wrong is a breach of a duty owed to

someone else. A breach of a duty owed to someone else is an
infringement of a right they have against the tortfeasor.’ R Stevens,
Torts and Rights (Oxford University Press, 2007)

Structuring the Law of Tort

The wrongs recognized by the law of tort – torts – can be classified or

structured in various different ways depending on what aspect of the law
of tort one is interested in. One helpful way of classifying them to begin
with is according to the type of interest that they protect.

Many torts protect only one type of interest. For example, the tort of
nuisance only protects a person’s interest in land, the tort of defamation
(not on our syllabus) only protects a person’s interest in their reputation.
The major exception to this is the tort of negligence, which protects a
variety of interests.

 Torts Protecting Persons’ Physical and Mental Well-Being (those

marked with a * are not covered in this module)

o Trespass to the Person

 Battery
 Assault
 False Imprisonment

o Negligence
 Imposes duties to take care not to negligently
cause reasonably foreseeable physical injury
 Imposes duties to take care not to negligently
cause psychiatric injury in certain circumstances

o Occupiers’ Liability Acts 1957, 1984

o The ‘Tort in Wilkinson v Downton’

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  Torts Protecting Persons’ Personality Interests

o Defamation*

o Protection from Harassment Act 1997

o Privacy (the Tort of Misuse of Private Information)*

 Torts Protecting Property

o Private Nuisance

o Trespass to Land (covered on our module in outline when

studying the Occupiers’ Liability Acts)

o Trespass to Goods*

o Negligence
 By imposing duties to take care not to negligently cause
reasonably foreseeable property damage

 Torts Protecting Economic Interests

o Negligence
 By imposing duties to take care not to cause reasonably
foreseeable economic loss

o The Economic Torts: Conspiracy*, Deceit*, Causing Loss by

Unlawful Means*, Intimidation*, Inducing Breach of Contract*

 Other Torts?

o Consumer Protection Act 1987

o The rule in Rylands v. Fletcher (1866) LR 1 Ex 265; (1868) LR
3 HL 330
o Breach of Statutory Duty*

Aims/Functions of Tort

 Compensation

 Deterrence

o Economic theories of tort law

 Rights and Wrongs

o See Jules Coleman at: http://plato.stanford.edu/entries/tort-

theories

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  Is tort morally necessary because the state bans generally taking
revenge?
o * S Steel, ‘On the Moral Necessity of Tort Law: The
Fairness Argument’ (2021) 41 Oxford Journal of Legal
Studies 192

 Publicising wrongs

 Distributive Justice

Criticisms of Tort Liability Generally

 Morally arbitrary
o Defendant is to blame but almost always not he/she who pays
but his/her insurer.
o Distinguishes arbitrarily between claimants who have equal
need on grounds of whether D is at fault. Better to have a
state fund: e.g. no-fault compensation scheme – e.g. Accident
Compensation Act 2001 (New Zealand).
 Too expensive to run

o Cf. the cost of other compensation mechanisms.

 Creates a “compensation culture”

o * Compensation Act 2006 ss1 and 2

o Lewis and Morris article (above)
o See the Young Report on KEATS for a view from Government.

Intention and the Boundaries of Trespass/Negligence

* Letang v Cooper [1965] QB 232

STUDY GUIDES

These points are intended to help guide your reading throughout the week
by alerting you to important or otherwise helpful aspects of the law to try
and understand so that you can properly prepare answers to the
discussion questions set out below for class itself.

 How does a tort differ from a criminal act? Tort generally focuses on
private wrongs and has the aim of compensating the victim over
punishing the defendant.

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 Are torts moral wrongs as well as legal wrongs? It depends. While
moral underpinnings exist, it is not a priority especially in cases
where strict liability is imposed.
 Are breaches of contract also ‘civil wrongs’? If so, what differentiates them
from torts? A difference between tort and contract is that a mere
“loss of expectation” cannot become an action in tort, besides in
the case of failing to confer a benefit to protect the safety of
another. Contracts are more forward looking.
 Why was the distinction between direct and indirect injury important in
tort historically? The former would also allow a claim in trespass to
the person, which was typically sought. The latter only allows a
claim in Tort.
 Are ss 1 and 2 of the Compensation Act 2006 useful in applying the law of
tort in practice? In theory it assists in narrowing the scope for tort
actions, which is a benefit to administration as a whole. In
practice, it seems to be a reiteration of the ‘man on the tube’
standard considering its vagueness.

DISCUSSION QUESTIONS

Note: The goal of a successful Tutorial class is not to ‘get through’ all of
the Discussion Questions. For this and for other Tutorials, the Discussion
Questions are an indicative guide of the issues you will cover in class. You
may focus on some questions more than others in your tutorial or use the
time to discuss questions that students have thought of during their
reading, but you should prepare and think about all of the questions on
the reading list, in advance of your tutorial and in preparing for your
examination.

1. What is a tort? A tort is a civil wrong that causes a claimant to

suffer loss or harm, resulting in legal liability for the person
who commits the tortious act.

2. Is there a correct way to think about the structure of the law of tort?

3. Do you agree or disagree with Lord Neuberger’s speech in reference

to the tension he identifies between policy and principle in the law
of tort? Why or why not? Agree, principle seems to be
relevant up until it isn’t, with the law of tort being peppered
with exceptions to principle beyond that. Policy will always
be prevalent especially in a field like Tort which is already
said to be the great mirror of a society. Not binary, you
always start with policy which later ossifies into principle.

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4. Do you agree with Lord Sumption’s speech in reference to tort’s role
as a means of providing a remedy for personal injury? Why or why
not? General agreement that no-fault based compensation
seems less wasteful, and that tort’s lean on negligence
means that its ill suited for deterrence anyways.

5. On the basis of what you have read this week, what do you think is
a convincing function or aim for the law of tort? An element of
Corrective Justice even if imperfect, and providing
expressive value for wrongs

6. What does the work of Lewis and Morris suggest we need to be

conscious of when thinking about the law of tort as a body of
abstract rules? The perception of a compensation culture
seems false. Numbers have remained relatively stable, there
are actually fewer employer’s liability claims, and evidence
that spurious claims has increased is mostly anecdotal.