Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definition, aims and functions of tort . . . . . . . . . . . . . . . . . . . 3
1.2 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Recommended reading . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 How to use this subject guide . . . . . . . . . . . . . . . . . . . . . . . 6
1.5 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1 Introduction
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Introduction
Tort is a branch of the civil law (as opposed to criminal law) based on a claim that the
defendant has caused injury or loss to the claimant by breaking a relevant obligation
imposed by the general law. This definition tells you nothing about what conduct is
tortious. You will understand that only when you know what counts as injury or loss
and what obligations the law imposes. Very broadly, tort law is one of the methods
by which people who have suffered injuries are compensated. It deals with whether
losses should lie where they fall or should be transferred to someone thought to be to
blame (not necessarily in a moral sense) for what has happened. Of course the person
to blame will often be insured or will be a large company or government department
and so the losses will often be spread more widely. For example, when a person is
injured by a careless motorist, the motorists insurance company will pay the damages
and the ultimate costs of the accident will fall on the general community who pay
insurance premiums.
Broadly speaking, the law of tort took its present shape in the nineteenth century
although of course it has developed considerably since then. Those interested in a
historical introduction may refer to Lunney and Oliphant, Chapter 1: General
Introduction, Section I Historical development of tort law; Winfield and Jolowicz,
Chapter 2: The structure if tort law: history and influences, Section 1 The forms of
action: trespass and case.

Objectives of this subject guide

By the end of this subject guide, you should be able to:
describe the relationship between tort and certain other branches of law
explain the relationship between different torts and the bases of liability in each
tort
identify the principal policy difficulties with the contemporary law of tort
identify and describe the sources of law relevant to tort.

On the impossibility of a
definition of tort see Murphy,
Chapter 1: Overview of the
law of torts, Section 1 What is
a tort; Winfield and Jolowicz,
Chapter 1: The Nature and
Functions of the Law of Tort,
Section 1 Nature of the law of
tort; on the aims or functions
of tort again see Winfield and
Jolowicz, Chapter 1: Nature
and Functions of the Law of
Tort, Section 1 Nature of the
law of tort; and Markesinis
and Deakin, Chapter 1:
Introduction, Section 1 Tort
at the crossroads and Section
5 Functions of tort.
Law of Tort 1 Introduction page 3
1.1 Definition, aims and functions of tort
1.1.1 Structure of tort
There is no single principle of tort law but a series of different torts with different
origins and purposes. They protect a number of different interests against different
kinds of interference (usually by compensation for the consequences that is,
damages; but sometimes by an order to stop that is, an injunction).
In studying each tort (and even each element in each tort) you should ask yourself:
what interests are being protected
and against what sorts of interference (see below).
For example, the tort of defamation (see Chapter 12) protects the distinct interest
of reputation: in respect of some elements liability is strict and in respect of others
liability depends on proof of fault.
What interests are protected by the law of tort?
The law of tort protects to different degrees and in different ways the physical
integrity of the person, property interests, reputation and economic interests. There
are arguments about how far it should protect other interests, such as a persons
right to privacy. In many torts material damage has to be caused before there can be
an action. In others there is no need for material damage to the claimant, but one
of the claimants rights has been interfered with. It is for instance an actionable tort
deliberately to touch another person (subject to many defences) even though no
damage is caused (see Chapter 9) and to defame someone in writing even though no
damage is caused (see Chapter 12). In such cases the tort is said to be actionable per se
(i.e. in itself).
What kind of conduct by the defendant accompanied by what kind of mental state is
tortious

if it produces an invasion of a relevant interest? Liability may be:

strict (e.g. consumer protection legislation): liability does not depend on proof of
fault on the defendants part
based on negligence by defendant
based on intentional conduct by defendant
based on the ultimate motive or purpose of the defendant (rare in English law).
Relations between tort and other forms of liability
Some tortious conduct is at the same time illegal in some other sense (e.g. criminal):
a person who deliberately strikes someone else commits both a tort and a crime. But
tort and other forms of illegality do not wholly coincide. Some action is tortious but is
not criminal or illegal in any sense other than being tortious: conversely some conduct
is illegal (e.g. criminal or unlawful in a public law sense) but is not tortious even if it
causes loss or damage (this point is developed more fully in Chapter 7).
The relationship between tort and breach of contract is also of interest. The distinction
between the two has usually been explained in this way. Tort involves the breach of an
obligation imposed by the general law (if I knock you down by carelessly driving my
car, I am liable to compensate you because the law imposes a duty to drive carefully
and not because I have promised you that I will do so). Breach of contract involves
the breach of an obligation voluntarily undertaken by the person in breach (if I fail to
deliver the car that you have bought from me, I am liable to compensate you because
I have failed to carry out my promise). This distinction is however not watertight.
In particular in recent decades a whole area of tort law has developed based on a
voluntary assumption of responsibility (see liability for mis-statements in Chapter 5)
and this has blurred the traditional distinction between tort and contract.

Note: tortious is
pronounced torshus.
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1.1.2 Policy questions
You should consider as you study this subject a number of policy questions related to
the purposes to be served by the law of tort. Examples are:
How should the law of tort relate to alternative sources of compensation? (See
Winfield and Jolowicz, Chapter 1: Nature and Functions of the Law of Tort, Section
3 Tort and other sources of compensation and Markesinis and Deakin, Chapter 1:
Introduction, Section 7 Alternative systems of compensation.) The main sources
are the social security system and insurance either by potential claimants (e.g. life
insurance) or by potential defendants (e.g. car insurance). You are not expected to
know the details of these systems but their existence affects (and perhaps should
affect more) the content of tort law, and the relation between different sources of
compensation is relevant to the calculation of damages (see Chapter 13).
How far should liability be based on fault? (See Markesinis and Deakin, Chapter 1:
Introduction, Section 6 Fault as the basis of tortious liability).
To what extent should public bodies be liable for failures in regulatory systems?
(See Chapter 5).
1.2 Sources
In your study of this subject, you will have to consider the following sources of law.
Cases
Most of the law of tort is judge-made and is to be found in reported cases. This process is
continuing and you should think about the direction in which the courts are moving as
well as the content of decided cases (see, for example, the developments in relation to
economic loss, in Chapter 5). In answering a question, as in advising a client or employer,
you have to be able to judge how a court might decide a future case as well as describing
what has been decided in past cases. You should also consider how appropriate
judge-made law is as a source of new developments. Compare the willingness of the
courts to be creative in relation to economic loss (see Chapter 5) and their refusal to
be so in relation to environmental protection (see Chapter 11). Some cases are merely
illustrations and applications to particular facts of well-established principles: they can
be used as illustrations in handling problem questions in examinations. Other cases are
the source of important principles: the judgments are discursive, discuss issues of policy
and suggest lines of development for the future. These cases have to be studied with
more care. The ability to identify important cases increases with experience, but you can
be guided by the way in which particular cases are discussed in the textbooks.
Statutes
Some statutes replace or partly replace areas of the common law (e.g. Occupiers Liability
Acts 1957 and 1984); some provide additional protection over a wide field (e.g. Consumer
Protection Act 1987); some effect minor amendments only.
Impact of European Community law
The impact has been slight on the law of tort. The Consumer Protection Act 1987 gives
effect to a Community directive and there is potential for development in employers
liability and environmental protection. The tort of breach of statutory duty (Chapter 7)
might be developed to provide remedies for certain infringements of community law.
Impact of the Human Rights Act
The Human Rights Act 1998 gave effect in domestic law to the European Convention on
Human Rights (ECHR) with effect from October 2000. It is now a much more pervasive
source of the law of tort than is Community law. You will be familiar with the general
principles of the ECHR from your study of the British Constitution. You will find references
to the ECHR at various points in this guide. It is convenient to set out now some relevant
Law of Tort 1 Introduction page 5
general principles: in some respects the ECHR has introduced new ways of thinking into
the domestic law.
a. Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to
act in a way which is incompatible with a Convention right. This section therefore
has its greatest impact where the defendant to a tort action is a public authority
such as a local council.
b. The courts are however themselves public authorities: they therefore have to take
account of the ECHR in developing the law even in tort actions between private
citizens or private bodies such as companies to ensure that the United Kingdom
is not in breach of the ECHR. This is perhaps most obvious in relation to the tort of
defamation (Chapter 12) and Art 10 ECHR (freedom of expression).
c. The ECHR is based on a series of Convention rights of a general kind that have to
be respected. This is an unfamiliar kind of classification in English law. In order to
provide compensation for an interference with Convention rights the courts may
do one of the following:
They may apply an existing tort. If a public authority in England kills someone
(contrary to Art 2) or tortures someone (contrary to Art 3) this plainly falls within
the existing English law of tort.
They may modify an existing tort. For example, Art 2 requires the state to
provide protection against being killed and Art 3 requires the state to provide
protection against inhuman and degrading treatment. An existing English tort
may have to be modified in order to provide the necessary protection. See in
particular Chapter 5.
They may create a new right of action in damages: this is analogous to the
existing tort of breach of statutory duty. This is discussed more fully in Chapter
7. It should be noted that section 8 of the Human Rights Act 1998 provides that a
person is not entitled to an award of damages merely because a public authority
has acted unlawfully under the ECHR, and the court has a discretion to decide
whether an award is necessary in a particular case.
1.3 Recommended reading
There are several textbooks of different lengths on the law of tort. It is suggested that
you use at least one of these:
Lunney, M. and K. Oliphant Tort Law: Text and Materials. (Oxford: OUP, 2010)
fourth edition [ISBN 9780199571802].
Markesinis and Deakin Tort Law. (Oxford: Oxford University Press, 2008) sixth
edition [ISBN 9780199286577 (hbk); 9780199282463 (pbk)].
(Note: detailed reading references in this guide refer to the edition of Markesinis
and Deakin listed above. A seventh edition of this textbook is due to publish in late
2012 after the publication of this guide. However, you can still use the most recent
edition of the textbook by using the detailed chapter and section headings given
(as well as the index) to identify relevant readings.)
Murphy, J. Street on Torts. (Oxford: Oxford University Press, 2012) thirteenth
edition [ISBN 9780199554447].
Rogers, W.V.H. (ed.) Winfield and Jolowicz on Tort. (London: Sweet & Maxwell,
2010) eighteenth edition [ISBN 9781847037930].
These are quite lengthy and explore topics in greater depth and with more
background than is essential, and also cover topics which are not included in your
syllabus. Reference may also be made to:
Howarth, D. Textbook on Tort. (Oxford: Hart Publishing, 2005) second edition
[ISBN 0406959463].
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Useful collections of cases and materials:
Hepple, Howarth and Matthews Tort: cases and materials. (London: LexisNexis,
2000) fifth edition [ISBN 0406063265].
Weir, T. A Casebook on Tort. (London: Sweet and Maxwell, 2004) tenth edition
[ISBN 0421878800].
Shorter and/or more introductory books include:
Giliker, P. and S. Beckwith Tort. (London: Sweet and Maxwell, 2004) second
edition [ISBN 0421859806].
Mullis, A. and K. Oliphant Torts. (Basingstoke: Palgrave Macmillan, 2003)
[ISBN 0333963792].
McBride, N. and R. Bagshaw Tort Law. (Harlow: Longman, 2005) second edition
[ISBN 027368678X].
These give an overview of the subject and its role but are not sufficiently detailed to
serve as textbooks. A stimulating socio-legal work which addresses many of the policy
issues (see Policy questions, section 1.1.2 above) is:
Cane, P. Atiyahs Accidents, Compensation and the Law. (Cambridge University
Press, 2004) sixth edition [ISBN 0521606101].
although it is not suitable as a textbook.
It would be sensible to buy one of the standard textbooks referred to and, especially
if you do not have access to a library, one of the casebooks. Many cases are decided
each year on this subject: you will find helpful notes on recent cases in the leading
academic journals such as:
the Modern Law Review (MLR)
the Law Quarterly Review (LQR)
the Cambridge Law Journal (CLJ).
These journals may also contain general articles of interest. Judges increasingly make
reference to such articles in developing principles in new or difficult areas of law. Such
articles also frequently draw attention to the way in which particular problems are
dealt with in other countries with similar problems.
1.4 How to use this subject guide
This subject guide is not a textbook or even an introduction to the subject. It is
intended to direct you through the subject and to give an indication of how to tackle
each topic. It would be sensible to read through each chapter of this guide to identify
the main topics with which it deals and any particular problems or policy issues and
then to read the relevant sections in the textbooks. More detailed guidance is given
in the chapters of this subject guide where the law is in a state of development than
in those where the law is fairly well settled. You should be able to identify from this
reading the most important cases in more detail (see also under Sources, section 1.2).
The cases in this guide are not necessarily listed in order of importance: there are of
course many more relevant cases than are referred to here.
The introductory chapters of the books (and this chapter of the guide) deal with a
number of issues. It is not wise to try to learn these at once. These should be read
quickly now so as to get an idea of what the subject is about: some questions can be
identified (see Policy questions, section 1.1.2) which should be kept in mind as the
substance of the subject is studied. The introductory chapters should be considered
more carefully when the whole subject has been digested; then, some of the issues
raised will make more sense.
Law of Tort 1 Introduction page 7
1.5 The examination
Important: the information and advice given in the following section are based on the
examination structure used at the time this guide was written. However, the University
can alter the format, style or requirements of an examination paper without notice.
Because of this, we strongly advise you to check the instructions on the paper you
actually sit.
You are likely to be asked to answer four questions in the examination from a selection
of about eight. They are of two kinds.
Problem questions
You will be given a set of facts and either asked to advise one or more of the characters
or to discuss issues of tortious liability which arise. You must avoid simply identifying
the subject matter of the problem (for example, negligent mis-statements) and
writing all you know about it. Before writing, you should analyse the facts carefully to
work out the relation between the parties and the legal issues to which they give rise.
You can then select the legal principles which are relevant and marry the facts and
the legal principles into a logically structured answer. You do not literally set out your
answer in the form of advice but you must remember that you are solving a problem
and not simply writing an account of a particular area of law. Most problems contain
at least some issues where the law is not entirely clear; you have to identify these and
suggest the solution to which you think a court will be likely to come and give your
reasons for doing so. Problem questions seldom relate only to material in a single
chapter. You may expect to have to answer questions that involve more than one
tort or involve issues that are discussed in different chapters. In this guide specimen
questions are not found at the end of every chapter.
Essay questions
Such questions rarely ask for a straightforward account of a particular topic. They ask
you to write critically about a particular topic, to compare one topic with another, to
suggest reforms and improvements, to analyse the reasons which lie behind particular
areas of law and so forth.
In both kinds of question the most common error is irrelevance. You must identify the
precise issues(s) raised and direct your answer to it (them).
Example of an examination question
The role of strict liability in the law of tort should be greatly increased.
Discuss.
You can look at previous years exam questions and examiners comments on them in
the University of London External Programme Laws web site.
Most important
Examination questions DO
NOT ask you to write down
everything you know about
a topic.
Your aim should be to answer
the questions that the
examiners have asked, and
use only material relevant to
those questions.
Why critically?
Because the examiners want
to see if you understand the
subject well enough to write
about it as a lawyer would
sometimes a particular point
of view has to be argued and
sometimes you have to write
from both sides of the issue.
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Notes