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Tort Law 2. What is Tort?

Cases
Define tort? The word tort is derived from the Latin ‘tortum’, meaning twisted or wrong. Bradford Corporation v Pickles [1895] AC 587
Tort is a branch of the civil law which provides a remedy for a wrongfully inflicted The plaintiff supplied water to the City of Bradford. The
injury or loss or for infringement of a protected interest. defendant, Pickles, owned land through which water
percolated in undefined, underground channels to land
What interests are protected by Each specific tort has different requirements for liability and that each ‘ingredient’ owned by Bradford Corporation. When Bradford
the law of tort? of the particular tort must be met before a claim can be established. Different torts Corporation refused to buy his land at the inflated price
deal with different types of harm or wrongful conduct. For example: he demanded, Pickles began drainage work which
1. physical integrity is protected by the torts of negligence, public nuisance and diverted the water feeding the Corporation’s reservoirs
trespass to the person and diminished the water supply. The House of Lords
2. interests in property are protected by the torts of negligence, private and public decided that Mr Pickles had not committed a tort
nuisance and trespass to land because, although the Corporation had suffered damage
3. interests in the use and enjoyment of land are protected by the torts of (damnum), it had not been able to establish a right to
negligence, private and public nuisance and trespass to land the flow of water (as it was not in a water course, such
4. reputation is protected by the tort of defamation as a stream). Pickles’ conduct in diverting the water was
Tort protects these different interests against different kinds of interference, a lawful act and Bradford Corporation had therefore
usually by compensation, an award of damages for wrongfully inflicted harm. suffered no legal wrong (injuria).

Does the law of tort protect all the The law of tort does not protect all interests. In some situations where harm or loss
interests? is suffered as the result of another’s conduct there is no right to sue because the
interest is not one which the law protects. An example of damnum sine injuria
arose in Bradford Corporation v Pickles [1895] AC 587.
(Damnum sine injuria means damage without legal injury)

Explain the role and functions of The purpose of the law of tort is to provide an injured claimant with monetary
tort law. compensation. There are two main mechanisms for compensating innocent victims
of actionable injury or loss.
1. Loss shifting is where the loss that the innocent claimant suffers is shifted onto
the defendant by forcing the defendant to pay the claimant damages.
2. Loss spreading as a principal of compensation expresses the idea of so-called
distributive justice – the spreading of losses among a number of people. This
mechanism of compensation is more often underpinned by compulsory insurance.
Tony Weir notes that in most cases:
…the prime function of the area of social regulation we call ‘tort’ is to determine
when one person must pay another compensation for harm wrongfully caused.

Are there specific remedies Each tort has its own characteristics and specific remedies for the loss or harm in
available for the loss or harm in question.
question? In traffic accidents or medical negligence the remedy likely to be sought is
compensation referred to as damages. In with disputes between neighbours about
their use of land which constitute the tort of nuisance (noise or smells etc) an
award of financial compensation may not be sought, instead, the claimant may
request that the court grant an order to stop the nuisance, that is, an injunction to
restrain the defendant from continuing the interference.
Does material damage have to be In many torts (such as the tort of negligence) material damage has to be suffered
shown before an action in tort before there can be an action
can commence?
Tort Law 2. What is Tort? Cases
Can conduct be actionable even In some cases, intentional or negligent conduct can be actionable even though no Jobling v Associated Dairies Ltd [1981] 2 All ER 752
though no damage is suffered? damage has been caused. For example, it is an actionable tort deliberately to In Jobling v Associated Dairies Ltd [1981] 2 All ER 752 the
touch another person (trespass to person) even though no damage is caused. In defendants were liable in negligence when the plaintiff
such cases the tort is said to be actionable per se (i.e. in itself) sustained a back injury at his place of work. This injury
led to a 50 per cent reduction in his earning capacity.
Is all damage compensated by the If a person suffers harm or loss as the result of another’s tortious conduct, it may Three years later, and before trial of his negligence
law of tort? be that the damage they suffer is of a kind that the law of tort will not compensate. action, the onset of a disease of the spine left him totally
For a claim to succeed, the defendant’s intentional or careless conduct must lead unfit for work. Because the second event was brought
to damage (that is loss or injury) of a kind that is recognisable in tort. about by natural causes the House of Lords held that the
The types of damage that are recognisable in tort include but are not limited to: defendants were only liable for the reduced earning
1. physical damage to the person or property capacity up to the time of the onset of the disease.
2. psychological damage resulting from physical harm or the apprehension of
physical harm Alcock v Chief Constable of South Yorkshire (1992)
3. interference with land
4. economic loss

Actionable means? Giving sufficient reason to take legal action

Evaluate what amounts to There are four general principles that judges often apply (usually not explicitly) in
actionable damage. deciding whether or not to acknowledge a form of injury or loss as recognisable in
tort law:
1. Losses or injury arising from natural causes are excluded from the ambit of tort.
Case law example Jobling v Associated Dairies Ltd [1981] 2 All ER 752
2. Injuries or other losses arising from a traumatic event such as a car crash, or as a
result of the claimant falling through a loose floor board are likely to be
compensated in tort because the courts see them as forms of injury that are more
deserving of compensation than others.
3. Types of losses that are compensated for within other categories of law are less
likely to be compensated for or are likely to receive limited compensation in tort.
For example, a person who claims to have suffered nothing more than financial loss
as a result of another’s wrongful or negligent act will have difficulty establishing a
claim in tort – in part because the law of contract is seen as the appropriate law for
compensating financial losses.
4. Forms of injury or loss that is likely to impact on a large number of potential
claimants pose greater problems in relation to compensation than injuries or
losses, which, by their nature, affect a smaller class of individuals. Alcock v Chief
Constable of South Yorkshire (1992) is an example of the potential number of
claimants in a tort claim.
Tort Law 2. What is Tort? Cases
McFarlane v Tayside Health Board [1999] 4 All ER 961
In McFarlane the claimants, a married couple, had four
young children. They decided not to have any more
children and Mr McFarlane agreed to have a
vasectomy. The operation, carried out at a National
Health Service hospital, was not successful. Following
the operation the consultant surgeon wrote to Mr
McFarlane and informed him, incorrectly, that his
sperm count was negative and that he could dispense
with contraceptive precautions. When Mrs McFarlane
conceived again a healthy, but unplanned, baby girl
was born. Although the parents stated that they loved
and cared for the child, they sued the health authority
for the negligent failure of the vasectomy performed
on the husband and for negligent advice concerning
his fertility following the operation. Mrs McFarlane
claimed damages of £10,000 for the pain and distress
of the pregnancy and delivery. Mr and Mrs McFarlane
jointly claimed £100,000 in damages for the financial
costs of the child’s upbringing until the age of 18. The
House of Lords unanimously rejected the claim for the
costs of the child’s upbringing and refused to accept
that the law might regard a normal, healthy baby as
more trouble and expense than it is worth. According
to Lord Slynn, claims in respect of the costs of bringing
up a healthy child born as a consequence of a failed
sterilisation fall into the category of pure economic
loss (which, you will see below, is not recoverable in
tort). Therefore, although some costs relating to the
mother’s pain and suffering during pregnancy were
allowed, the economic cost of bringing up a healthy
child was not. Lord Millett did not consider that the
question in this case should depend on whether the
economic loss is characterised as pure or
consequential. He thought that the placing of a
monetary value on the birth of a normal and healthy
child is as difficult and unrealistic as it is distasteful. He
said: In my opinion the law must take the birth of a
normal, healthy baby to be a blessing, not a detriment.
In truth it is a mixed blessing. It brings joy and sorrow,
blessing and responsibility. The advantages and the
disadvantages are inseparable.