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INTRODUCTION
Criticisms of the Tort System in the Context of
- CHAPTER
- Nature and Functions of the Law of Tort 1–
- A. Aims of the Law of Tort 1–
- B. Definition of Tortious Liability 1–
- C. Tort and Contract 1–
- D. Concurrent Liability in Tort and Contract 1–
- E. Tort and Unjust Enrichment 1–
- F. Tort and Equitable Wrongs 1–
- G. Tort and Bailment 1–
- H. Tort and Crime 1–
- I. A Law of Obligations? 1–
- Foundation of Tortious Liability 1–
- Tort and Other Sources of Compensation 1–
- A. Damage to Property: Tort and Insurance 1–
- B. Personal Injuries and Death 1–
- C. Private Insurance, Occupational Pensions, etc. 1–
- D. Social Security 1–
- i. Non-industrial Injuries 1–
- ii. Industrial Injuries 1–
- E. Recovery of Social Security Payments 1–
- Paying for the Tort System 1– - 1– Personal Injuries
- A. The “Fault Principle” 1–
- B. Tort and Deterrence 1–
- C. Tort and Responsibility 1–
- D. Expense and Inefficiency 1–
- Alternatives 1–
- A. Strict Liability 1–
- B. Compensation Schemes 1–
- C. First-Party Insurance 1–
- Tort and the Compensation Culture 1–
1. NATURE AND FUNCTIONS OF THE LAW OF TORT
A. Aims of the Law of Tort
Numerous attempts have been made to define a “tort” with varying 1– degrees of lack of success. We will begin, therefore, with a general description rather than with a definition and must be content for the moment to sacrifice accuracy and completeness for the sake of simplicity. Having given a very broad description of the role of the law of tort we can then turn to the problem of formal definition, and finally look at the relationship of the tort system with certain other legal and social institutions pursuing similar ends.
It is not possible to assign any one aim to the law of tort, which 1– is not surprising when one considers that the subject comprehends situations as disparate as A carelessly running B down in the street; C calling D a thief; E giving bad investment advice to F; G failing to diagnose H’s dyslexia at school; and I selling J’s car when he has no authority to do so. At a very general level, however, we may say that tort law is concerned with allocating responsibility for certain types of losses. It is obvious that in any society of people living together numerous conflicts of interest will arise and the actions of one person or group of persons will from time to time cause or threaten damage to others. This damage may take many forms— injury to the person, damage to physical property, damage to financial interests, injury to reputation and so on—and whenever a person suffers damage at the hands of another person, especially if it is serious, he is inclined to look to the law for redress. If the law grants redress, some person or group of persons will be required to do or refrain from doing something. This redress may take various forms. In the great majority of tort actions the claimant is seeking monetary compensation (damages) for the injury he has suffered, and this fact strongly emphasises the function of tort in allocating or redistributing loss. In many cases, however, the claimant is seeking an injunction to prevent the occurrence of harm in the future and in this area the direct “preventive” function of tort
Lords rejected an application to strike out as an abuse of process the alternative cause of action based upon trespass to the person even though it was accepted that in the circumstances no greater damages could be obtained under this action than under that on which the defendants were prepared to concede liability. It was a fair inference that the family’s purpose was to obtain a finding that the deceased had not merely been the victim of organisational negligence in the planning of the raid but that he had been unlawfully killed, but they had pleaded a valid cause of action and the fact that they would recover no more damages for it did not mean that they had no legitimate interest in pressing it. As Lord Rodger observed: “the very fact that the chief constable remains understandably concerned to defend the claim of [trespass] tends to confirm that the claimants may remain, equally understandably, concerned to pursue that claim.”^5 There have also been cases in which a civil claim has been brought in order to provoke the prosecuting authorities into acting.^6 It is perhaps unkind to call tort the dustbin of the law of obligations, but it is certainly the great residuary category. No one theory explains the whole of the law.
B. Definition of Tortious Liability
Winfield’s definition of tort was as follows: “Tortious liability 1– 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.” In framing this definition Winfield was not seeking to indicate what conduct is and what is not sufficient to involve a person in tortious liability, but merely to distinguish tort from certain other branches of law.^7 As we shall see, it cannot be accepted as entirely accurate but it has the merit of brevity and contains elements which deserve continuing emphasis. It is true that a cause of action in modern law is merely a factual situation the existence of which enables the claimant to obtain a remedy from the court^8 so he is certainly not in the position he was in 200 years ago of having to choose the right “form of action” to fit his claim. Nonetheless, even the comparatively lax modern style of pleading requires the claimant to set out the elements of the claim
which he seeks to establish, and in practice this will nearly always involve identifying the tort or other cause of action on which he relies. The third element of Winfield’s definition (which is convenient to mention first) is that the breach of duty is redressable by an action for unliquidated damages. A claim is said to be “liquidated” when it is for a fixed, inelastic sum^9 or one which is calculable by the mere process of arithmetic.^10 It is not, of course, a sufficient test of tort liability that the remedy is unliquidated damages—for these are also the primary remedy for breach of contract—but it seems to be a necessary one. If the claimant cannot recover unliquidated damages then whatever claim he may have, it is not for tort. Winfield would now be forced to retreat from the claim that if a duty is towards a specific person or specific persons it cannot arise from tort,^11 but there is probably still some substance in his contention that the element of generality was an important factor in the definition. It is arguable that everything depends upon the level of abstraction at which the duty is expressed. It can be truly stated that by virtue of the law of tort D is under a duty not to convert to his own use the goods of anybody else, while D’s contractual duty to deliver goods which D has sold is owed only to the person to whom D has sold them but this is to compare two statements at different levels. Just as D has a general duty not to commit the tort of conversion, so D has a general duty not to commit breaches of contract. If, on the other hand, we descend to the particular, then just as D’s duty to deliver certain goods is owed only to their buyer, so also D’s duty not to convert certain goods to D’s own use is owed only to the person in possession, or having the immediate right to possession, of them.
C. Tort and Contract
Overlap between tort and contract. From a practical lawyer’s 1– point of view there may be a considerable overlap in any factual situation between the law of contract and the law of tort. For example, a claim for damages arising from a defective product may involve a complex web of issues under the Sale of Goods Act 1979,
agreement to give the advice, if not necessarily upon his agreement to accept legal responsibility for it. Still more difficult is the fact that in some situations an undertaking (whether or not by contract) by A to B to perform a service, the object of which is to confer a benefit upon C, may give rise to liability in tort to C.^16 Not only is it untrue that all tortious duties arise independently of the will of the defendant, but it is equally not true that contractual duties are always dependent upon that will. Apart from the obvious point that the duty not to break one’s contracts is itself a duty imposed by the law, it is also the case that contractual liability may exist even in the absence of any true consent between the parties. Whether or not there is a contract normally depends upon the outward manifestations of agreement by the parties, not on their subjective states of mind.^17
Content of the duty. Another mode of differentiation between 1– tortious and contractual liability is to be found in the proposition that in tort the content of the duties is fixed by the law whereas the content of contractual duties is fixed by the contract itself. If D consents to C’s entry upon his premises then the duty which D owes to C is the duty fixed by the Occupiers’ Liability Act 1957, i.e. by the law itself, but whether, for example, D’s duty is to deliver to C 10 or 20 tons of coal can only be discovered from the contract between C and D. Even this distinction, however, is by no means always valid, for today in many cases the content of contractual duties is also fixed by the law. Statute provides, for example, that certain quite specific obligations shall be contained in contracts for the sale or hire-purchase of goods and cannot be excluded;^18 and it is now no longer true, as perhaps it once was, that implied terms in a contract, in the absence of a statutory rule, are always to be based upon the presumed intention of the parties.^19 Conversely, there are tortious duties which are subject to variation by agreement, whether or not that agreement amounts in law to a contract between the parties.^20
Aims of contract and tort. Another basis for distinguishing 1– between contract and tort may be sought in the aims of the two heads of liability. Arguably, the “core” of contract is the idea of
enforcing promises, whereas tort aims principally at the prevention or compensation of harms, and this difference of function has two principal consequences. First, that a mere failure to act will not usually be actionable in tort, for that would be to set at naught the rule that even a positive promise will not give rise to legal liability unless it is intended as legally binding and supported by consideration or the formality of a deed. The second consequence is that damages cannot be claimed in tort for a “loss of expectation”. Damages in contract put the claimant in the position he would have been in had the contract been performed, whereas damages in tort put him in the position he would have been in had the tort not been committed. However, this basis for distinguishing between contract and tort is imperfect. For one thing, failure to receive the benefits promised under a contract might be regarded as “harm”.^21 Furthermore, there are instances where liability in tort arises for failing to confer a benefit on others in the sense of failing to protect their safety. Some of these are of very long standing, for example, the duty of an occupier to take steps to ensure that his visitors are not harmed by dangers on his land, even if those are not of his making. As to damages, the law of contract puts the claimant in the position he would have been entitled to occupy (subject to the law of remoteness) as a result of the transaction agreed between the parties. While it is clear that (assuming the claim in tort to arise from some transaction between the parties) tort does not do that, the distinction is less fundamental than might appear. If a surgeon operates negligently on a curable condition and leaves the condition incurable, the patient recovers damages on the basis that with careful surgery he would have been cured; if a solicitor negligently fails to carry out X’s instructions to make a will in favour of C, C can recover as damages the value of the lost legacy;^22 and if the seller of property fraudulently^23 induces the claimant to buy it, while the claimant cannot recover as damages the profits he would have made if the representation had been true, he may be able to recover the profits he would have earned by laying out his money elsewhere.^24
“the result may be untidy; but, given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties, I do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him.”^35
Thus, for example, concurrent liability arises between carrier and passenger, doctor and (private) patient, solicitor and client, and employer and employee.
Effect of allocation of responsibility by contract. Usually, 1– concurrent liability will not affect the substantive duty that the defendant owes: the duty will be the same in tort and contract. For example, a doctor’s duty in tort is to exercise proper professional care and skill and the implied terms in his contract are the same:^36 he does not impliedly warrant that he will effect a cure, though theoretically he may do so by an express promise to that effect.^37 However, there have been several cases in which attempts have been made to use the duty in tort to override the allocation of responsibility between the parties by contract. If the contract were to provide expressly that the defendant was not liable for “risk X” then (subject to the effect of the Unfair Contract Terms Act 1977 upon that term) it would be absurd to allow a tort duty to intrude and contradict that allocation.^38 The same must be true where there is an implied term in the contract that the defendant is not to be liable for “X” (or, as it would be more likely to be expressed, there is no implied term that he should be liable for that risk).^39
Instances where the courts regard the situation as the province 1– of the law of contract. Even where the parties are not in a contractual relationship restraint may have to be exercised because sound policy may suggest that the matter should be left entirely to contract law. Thus building contracts are commonly made by a tendering process and contract law has reasonably clear rules about this. The basic principle is that the person who invites tenders has complete discretion as to which bidder shall get the contract. This may be modified in some cases by a finding that there was a promise (a collateral contract) to accept the “best” bid; or at least a promise to give honest consideration to all conforming bids; and where public works are involved there may be statutory
requirements which displace the general law. There would be a serious risk of disruption of these principles if we allowed contentions that the invitor owed a “duty of care” to bidders, still more if we allowed such arguments to be advanced by sub-
contractors associated with unsuccessful bidders.^40
E. Tort and Unjust Enrichment
The law of unjust enrichment is concerned with situations where 1– one person has been unjustly enriched at the expense of another. The paradigm example of liability arising in this branch of the law is that to repay money which has been paid under a mistake of fact. Suppose that C mistakenly deposits £100 in D’s bank account thinking that he was depositing the money in X’s account. D is under a duty to return the money to C. The liability is distinct from liability in tort because the liability does not depend on any breach of duty. D does not owe C any duty not to accept money from C.^41
F. Tort and Equitable Wrongs
Wrongs that are redressable in equity include breach of trust and 1– breach of fiduciary duty. A breach of trust occurs, for example, where a trustee misapplies trust property. A breach of fiduciary duty is committed, for instance, where a solicitor who is acting for a client in respect of a commercial opportunity seizes that opportunity for himself. Liability for equitable wrongs can arise concurrently with liability in tort. Equitable wrongs are distinct, at least historically, from torts. In earlier times, equitable wrongs were actionable only in the chancery courts whereas proceedings in tort were commenced in the common law courts. However, the fact that equitable wrongs depend upon a breach of duty owed to the claimant has led some authors to argue that they should be regarded as torts.^42 This view is now arguably dominant among theorists, although it certainly does not command universal support. It has been argued, for example, that torts and equitable wrongs are distinct on the ground that the former are concerned with the
gratuitous loan of something for the use of the borrower, what is the nature of the liability? Winfield’s opinion was that the bailee’s liability is not tortious because, he said, the duty arises from a relation, that of bailor and bailee, which is created by the parties. No one need be a bailee if he does not wish to be one and no one can have liability for the safe custody of goods thrust upon him against his will.^45 It is certainly true that a person cannot be subjected to the duties of a bailee without his consent but as we have already seen, there are duties which are undoubtedly tortious and which can only exist if there has been some prior agreement between the parties, so it may be argued that there is no good reason for distinguishing the common law duties of a bailee from duties of this kind. Assumption of responsibility has been an important idea in the expansion of the modern law of negligence^46 but a little before this occurred it was said on high authority that the obligation of the bailee “arises because the taking of possession in the circumstances involves an assumption of responsibility for the safe keeping of the goods”.^47 Furthermore, while it is a requirement of a bailment that the bailee voluntarily takes custody of the goods, it seems that it is not necessary that the bailor should consent to
their custody.^48 If the bailor’s claim is necessarily founded upon some specific provision in a contract, then, no doubt, the bailee’s liability is not tortious but contractual; but if the bailor’s claim rests upon a breach by the bailee of one of the bailee’s common law duties, then might one not contend that his liability is as much attributable to the law of tort as is the claim of a visitor against the occupier of premises under the Occupiers’ Liability Act 1957?^49 However, the Court of Appeal has held that a gratuitous bailment may create a legal obligation independent of that in tort, though on the facts there was also a parallel liability under that head.^50 Sometimes the legislature lays down rules by reference to the contract/tort distinction and no other. For example, the legislation on limitation of actions contains elaborate provisions on contract and tort but says nothing about bailment. The courts have nevertheless managed to accommodate bailment cases within this
structure.^51 All this is typical of the common law’s willingness to be pragmatic about “classification” and to admit parallel causes of
action.
H. Tort and Crime
Crime and tort overlap. Many torts are also crimes, sometimes with 1– the same names and with similar elements (for example, assault and battery) and sometimes a civil action in tort is deduced from the existence of a statute creating a criminal offence.^52 The more serious, “traditional” criminal offences are likely to amount to torts^53 provided there is a victim.^54 There is no real difficulty in distinguishing criminal prosecutions from action in tort, if only because they are tried in different courts by different procedures. Generally, criminal proceedings are brought by the Crown Prosecution Service or some authorised body and although a private prosecution is still possible, the object of the proceedings in any case is the imposition of some sanction in the nature of punishment, for example, imprisonment or a pecuniary fine, even though the sanction imposed may have a reformative rather than a strictly punitive purpose. Nevertheless, there are functional overlaps between the two categories. At least some of tort law, like crime, has the purpose of deterrence and in a very limited class of cases tort imposes overt punishment upon defendants in the shape of exemplary damages.^55 On the other side, criminal proceedings may lead to a compensation order in favour of the victim. In this respect the distinction between crime and tort has become more blurred, though since tort originated in trespass, which to our eyes was in medieval times quasi-criminal, the law may only be returning to its roots. Furthermore, the compensatory sums awarded under these provisions are, until the court specifies their exact amount, quite uncertain and are therefore just as “unliquidated” as are damages in tort. There is, however, one peculiarity which marks them off from damages in tort. In every case they are obtainable only as a result of a process the primary purpose of which, when it is initiated, is the imposition of punishment, or something in the nature of punishment. In crime, the award of compensation is ancillary to the criminal process: in tort it is normally its very object.
2. FOUNDATION OF TORTIOUS LIABILITY
Law of tort or law of torts? Winfield’s definition of tortious 1– liability has been criticised on the ground that it is formal, not material, and does nothing to indicate the lawfulness or otherwise of a given act. However, Winfield did devote several pages of early editions of this work to discussion of a familiar controversy concerning the foundation of tortious liability which has some bearing on the problem of a material definition. Salmond had asked:^57
“Does the law of torts consist of a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse, or does it consist of a number of specific rules prohibiting certain kinds of harmful activity, and leaving all the residue outside the sphere of legal responsibility?”
Put differently, the question is whether we have a law of tort, or a law of torts. Winfield chose the second alternative.^58 From the point of view of the practical lawyer concerned with the law at a particular moment there can be no doubt that the second view is the correct one: for example, a recording company was held to have no civil action in respect of “bootlegging” of its artists’ performances where it was unable to prove any of the economic torts or the distinct tort of breach of statutory duty,^59 even though the defendants’ conduct was criminal and no justification for it could be offered. Despite occasional judicial canvassing of the idea,^60 English law has not adopted what in the United States is known as the “prima facie tort theory” whereby “the intentional infliction of temporal damages is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape”.^61 Nevertheless, it should be noted that we have for a good many years had something very close to a generalised principle of liability in situations where the defendant’s purpose is the infliction
of physical harm^62 on the claimant,^63 and despite the caution which characterises the courts’ attitude to the duty of care in negligence^64 it will be an unusual case in which the defendant is not liable where his act has caused foreseeable physical damage to the claimant or his property.
A general principle underpinning tortious liability? Despite 1– Winfield’s embrace of the “law of torts” view as a practical, day-to- day matter,^65 he contended that from a broader outlook there was validity in the theory of a fundamental general principle of liability, for if we take the view, as we must, that the law of tort has grown for centuries, and is still growing, then some such principle seems to be at the back of it. It is the difference between treating a tree as inanimate for the practical purposes of the moment (for example, for the purpose of avoiding collision with it, it is as lifeless as a block of marble) and realising that it is animate because we know that it has grown and is still growing. The caution and slowness which usually mark the creation of new rules by the judges tend to mask the fact that they have been created, for they have often come into existence only by a series of analogical extensions spread over a long period of time. To vary the metaphor, the process has resembled the sluggish movement of the glacier rather than the catastrophic charge of the avalanche but when once a new tort has come into being, it might fairly seem to have done so, if the whole history of its development is taken into account, in virtue of the principle that unjustifiable harm is tortious.^66
An attempt to find some middle ground. Since the supporters of 1– the second view do not deny that the law of tort is capable of development, or even that new heads of liability can come into existence, and since the supporters of the first view admit that no action will lie if the conduct which caused the harm was justifiable, the difference between them is perhaps less than is sometimes supposed. Summing up his investigation into the controversy, Professor Glanville Williams said this:^67
“The first school has shown that the rules of liability are very wide. The second school has shown that some rules of absence of liability are also very wide. Neither school has shown that there is any general rule, whether
3. TORT AND OTHER SOURCES OF COMPENSATION
As will be seen, much of the law of tort in practice is concerned 1– with the problem of accidental injury to the person or damage to property, and the general approach of the law to these problems rests on two broad principles. Both are subject to many exceptions and qualifications but by and large it is the case (1) that the victim of accidental injury or damage is entitled to redress through the law of tort if, and only if, his loss was caused by the fault of the defendant or those for whose fault the defendant must answer, and (2) that the redress due from the defendant whose liability is established should be “full” or should, in other words, be as nearly equivalent as money can be to the claimant’s loss. Nevertheless, even in those accidents which can be attributed to another’s fault, the role played by the law of tort should not be exaggerated. A century or so ago the law of tort was probably the primary vehicle of compensation, but poverty, ignorance or economic pressure deprived many injured persons of access to the law and threw them back on the Poor Law, charity or the assistance of a trade union or friendly society. In more recent times the development of insurance and social security has tended to relegate tort law to a more secondary role. We must, therefore, turn to look at some of these other sources of compensation and their relationship with the law of tort and in doing so consider further some of the assumptions which underpin the tort system.
A. Damage to Property: Tort and Insurance
Types of insurance. There is little in the way of state provision for 1– loss or damage to property,^68 which obviously occupies a much lower position of priority than personal injury.^69 Private insurance is, however, of very great significance in relation to property damage. Insurance takes two basic forms: “loss” or “first party” insurance and “liability” or “third party” insurance. Under the first, the owner of property has cover against loss or damage to specified
property from the risks described in the policy, such as fire, flood and theft, whether or not the loss occurs through the fault of any other person.^70 Under the second, the insured himself is covered against legal liability which he may incur to a third party, and the establishment of such liability by the third party, not merely loss suffered by the third party, is an essential prerequisite to a claim on the policy. A good example of a policy combining both types of cover is a motor “comprehensive” policy,^71 which will: (a) cover the insured against legal liability to other road users and passengers; and (b) entitle the insured to claim from his insurer the cost of repairs should his vehicle be damaged or the value of the
vehicle if it becomes a “write-off”.^72
Subrogation. Loss insurance is of very great significance in 1– relation to damage to property. A fundamental principle of the law on loss insurance is that it is irrelevant to tort liability.^73 If D damages C’s property and this is fully covered by an insurance policy, that in no way precludes C suing D for the cost of repairing the property.^74 Indeed, even if C has collected on his insurance that would not provide D with a defence.^75 In fact, it is inconceivable that C would sue in the latter case because, property loss policies generally being contracts of indemnity, he would then have to reimburse the insurer with the damages recovered. A more likely outcome is that the insurer will exercise his right to be subrogated to C’s rights against D, and sue D (in reality probably D’s liability insurers) in C’s name.^76 The opportunities for an effective exercise of the insurer’s rights of subrogation may vary considerably from one type of case to another. In marine cases the right is probably commonly exercised because the size of the individual claim makes it worthwhile to do so; in home and contents insurance subrogation is probably almost nonexistent since if the loss is anyone’s fault it is likely to be the householder’s (against whom it cannot be exercised) or that of persons, like burglars, who will not be worth pursuing. In the case of road accidents, repairing or replacing vehicles probably represents insurers’ largest single cost. For many years nearly all motor insurers operated a “knock for knock” agreement, so that if
