Markesinis and Deakin’s tort law

Citation:

Deakin, S. F., & Adams, Z. (2019). Markesinis and Deakin’s tort law (8th ed.). Oxford University Press.

Chapter Summary:

Markesinis and Deakin’s Tort Law is a comprehensive textbook on the law of torts, meticulously updated to reflect the latest legal developments, including numerous Supreme Court decisions and major legislative changes. The book is structured into eight parts, each focusing on different aspects of tort law. Here is a detailed summary of each part:

Part I: Setting the Scene

Introduction – Explores the crossroads at which tort law stands, the division between tort and contract, and the fundamental elements and policy considerations of wrongdoing in tort.
Advice for the Novice Tort Lawyer – Offers practical advice for newcomers to tort law, emphasizing the judicial mindset, the intersection of academic and practical concerns, and the challenges tort law faces in addressing modern problems.

Part II: The Tort of Negligence

Establishing Liability in Principle: Duty of Care – Discusses the duty concept, kinds of damage, and the formulation of the duty of care.
Liability for Fault: Breach – Examines the concept of breach of duty, professional standards, and the balancing of risk against the cost of prevention.
Liability for Damage Caused: Causation and Remoteness – Covers the causal inquiry, the but-for test, and the concepts of remoteness and intervening acts.

Part III: Special Forms of Negligence

Liability of Occupiers and Builders – Details the liability of occupiers under statutory and common law and the responsibilities of builders and local authorities.
Breach of Statutory Duty – Analyzes the nature of civil liability for statutory breaches and the components necessary for such claims.
Liability of Public and Statutory Bodies – Explores the distinctive liability of government and statutory bodies, including negligence and ultra vires acts.

Part IV: Interference with the Person

Intentional Interference – Defines and elaborates on assault, battery, false imprisonment, and harassment.
Malicious Prosecution – Discusses the elements required to establish a claim for malicious prosecution.

Part V: Land, Chattels, and Intentional Interference with Economic Interests

Interference with Chattels – Covers trespass to goods, conversion, and negligence.
Trespass to Land – Details the elements of trespass and possible defenses.
Nuisance – Discusses private and public nuisance, the basis of liability, and available defenses.
Deceit – Analyzes the tort of deceit, focusing on false statements and causation.
The Economic Torts – Explores wrongful interference with contractual and business relationships, including inducing breach of contract and conspiracy.

Part VI: Stricter Forms of Liability

The Rule in Rylands v. Fletcher – Explains the requirements and defenses associated with strict liability for hazardous activities.
Liability for Animals – Discusses liability for damage caused by animals under various legal provisions.
Employer’s Liability – Covers the tortious liabilities of employers towards employees.
Vicarious Liability and Non-Delegable Duties – Analyzes the expansion of vicarious liability and non-delegable duties, particularly in employment contexts.
Product Liability – Reviews the evolution and current state of product liability law.

Part VII: Protection of Human Dignity (in Private Law)

Defamation and Injurious Falsehood – Discusses the elements of defamation, defenses, and remedies.
The Protection of Human Privacy – Explores the legal protection afforded to privacy, including intrusion and appropriation of personality.

Part VIII: Defenses and Remedies

Defenses – Details various defenses available in tort law, such as contributory negligence and consent.
Damages – Analyzes the principles and types of damages, including compensatory, punitive, and nominal damages.
Other Remedies and Multiple Liabilities – Discusses injunctions, joint and concurrent liability, and other remedies available to tort claimants.

This structured approach ensures a comprehensive understanding of tort law, addressing both theoretical and practical aspects, and is particularly useful for both students and practitioners in the field.

Key Concepts:

Duty of Care:

The foundational principle in negligence law, requiring individuals to exercise reasonable care to avoid causing harm to others.
Establishing duty involves a three-stage test: foreseeability of damage, a proximate relationship between the parties, and whether imposing a duty is fair, just, and reasonable.
Landmark case: Donoghue v. Stevenson (1932), which established the “neighbor principle.”

Breach of Duty:

Occurs when a person’s conduct falls below the standard of care expected under the circumstances.
The standard is typically that of a “reasonable person.”
Factors considered include the probability of harm, the severity of potential harm, and the burden of taking precautions.

Causation:

The plaintiff must prove that the defendant’s breach of duty caused the harm.
Includes two main tests: factual causation (the “but-for” test) and legal causation (proximity and remoteness).
Notable case: Barnett v. Chelsea & Kensington Hospital Management Committee (1969).

Remoteness of Damage:

Limits liability to consequences that are reasonably foreseeable.
The leading case is The Wagon Mound (No. 1) (1961), establishing that damages are not recoverable if they are too remote.

Strict Liability:

Liability without fault, imposed in specific situations such as under the rule in Rylands v. Fletcher (1868) for hazardous activities.
Covers areas like product liability and liability for animals.

Vicarious Liability:

Imposes liability on employers for the torts committed by employees during the course of their employment.
Significant developments include the extension of this principle to relationships “akin to employment.”

Defamation:

Protects individuals from false statements that harm their reputation.
Requires proof of a defamatory statement, publication, and reference to the claimant.
Defenses include truth, honest opinion, and privilege.

Privacy:

Legal protections against unwarranted intrusions into one’s private life.
Evolving through case law and statutory developments, especially in the context of digital technology.

Nuisance:

Deals with the use of property in a way that unreasonably interferes with others’ rights to use or enjoy their property.
Includes both private and public nuisance claims.

Economic Torts:

Protects against unlawful interference with trade or business interests.
Key torts include inducing breach of contract, intimidation, and conspiracy.

Damages and Remedies:

Aim to compensate the injured party, restore them to their original position, or deter wrongful conduct.
Types include compensatory, punitive, nominal, and aggravated damages.
Remedies also encompass injunctions and specific performance.

Human Rights and Tort Law:

Increasing influence of human rights principles on tort law, particularly in areas like privacy and defamation.
The Human Rights Act 1998 has been pivotal in shaping modern tort law.

By exploring these concepts, Markesinis and Deakin’s Tort Law provides a deep understanding of both the theoretical foundations and practical applications of tort law. The textbook combines detailed legal analysis with consideration of the broader social, economic, and technological contexts in which tort law operates.

Critical Analysis:

Evolution of Duty of Care:

The evolution of duty of care from Donoghue v. Stevenson to the modern three-stage test reflects a shift towards a more structured and predictable approach. However, the imposition of duty remains inherently flexible, allowing courts to adapt to new societal challenges. Critics argue that this flexibility can lead to unpredictability and inconsistency in judgments.

Judicial Innovation and Legislative Changes:

The eighth edition highlights the substantial influence of recent Supreme Court decisions on tort law, particularly in areas such as vicarious liability and non-delegable duties. Judicial innovation has often outpaced legislative change, leading to a dynamic legal landscape. This proactive judicial approach is both praised for its responsiveness and criticized for potential overreach into legislative domains.

Causation and Remoteness:

The concepts of causation and remoteness are pivotal in limiting liability, ensuring that defendants are not held accountable for unforeseeable consequences. The but-for test, while fundamental, has its limitations, particularly in complex cases involving multiple causes. The approach to remoteness, as established in The Wagon Mound (No. 1), balances the need for fairness with the need to prevent endless litigation. However, some argue that this balance is difficult to maintain in practice.

Economic Analysis of Tort Law:

The book delves into the economic analysis of tort law, discussing the Coase theorem, transaction costs, and cost internalization. This perspective emphasizes efficiency and the minimization of social costs. While this approach provides valuable insights, it can be criticized for potentially prioritizing economic efficiency over justice and fairness.

Role of Insurance:

The role of insurance in shaping tort law is extensively analyzed. Insurance influences the behavior of both plaintiffs and defendants, impacting decisions about pursuing claims and the scope of liability. The interplay between insurance and tort law raises questions about moral hazard and the true purpose of tort law—whether it is to compensate victims, deter wrongdoing, or distribute losses.

Strict Liability and Public Policy:

The imposition of strict liability, particularly in the context of Rylands v. Fletcher, reflects public policy considerations aimed at managing inherently dangerous activities. While this doctrine ensures that those who benefit from certain activities bear the associated risks, it can be seen as harsh, particularly for small businesses or individuals engaging in otherwise lawful activities.

Vicarious Liability and Non-Delegable Duties:

The expansion of vicarious liability and non-delegable duties reflects a broader trend towards organizational responsibility. This shift acknowledges the complexities of modern employment relationships but also raises concerns about the boundaries of liability. The criteria for establishing vicarious liability, especially in cases involving intentional torts, continue to evolve, prompting debates about fairness and foreseeability.

Privacy and Digital Age Challenges:

The book addresses the emerging challenges posed by digital technologies, particularly in the realms of privacy and defamation. The evolving nature of these torts reflects the need to balance freedom of expression with the protection of personal dignity. The rise of “surveillance capitalism” and data monetization presents new legal questions that future editions will need to grapple with in greater detail.

Human Rights Influence:

The increasing influence of human rights law on tort law is a significant theme. The incorporation of human rights principles into tort claims, particularly regarding privacy and defamation, reflects a broader trend towards integrating fundamental rights into private law. This development enhances the protection of individual rights but also complicates the legal landscape, as courts must balance competing interests.

Practical Implications for Lawyers and Practitioners:

The practical advice for novice tort lawyers underscores the importance of understanding judicial reasoning, the interplay between academic theories and practical realities, and the strategic considerations in litigation. The book’s emphasis on real-world application ensures that it is not just an academic text but a valuable resource for practitioners navigating the complexities of tort law.

Overall, Markesinis and Deakin’s Tort Law provides a nuanced and critical perspective on the development and application of tort law. It highlights the dynamic nature of this legal field, shaped by judicial innovation, legislative changes, and broader social and economic forces. The textbook encourages readers to critically engage with the material, understanding both the theoretical underpinnings and practical implications of tort law doctrines.

Real-World Applications and Examples:

Product Liability:

In real-world scenarios, product liability cases often involve injuries caused by defective products. The Consumer Protection Act 1987, which implements EU Directive 85/374/EEC, establishes strict liability for producers. For example, if a consumer is injured due to a defect in a household appliance, the producer can be held liable even if there was no negligence in the manufacturing process.

Medical Negligence:

Medical negligence claims are common examples of tort law in action. These involve situations where healthcare professionals fail to provide the standard of care expected, leading to patient harm. Cases like Bolam v. Friern Hospital Management Committee (1957) illustrate how courts determine the standard of care based on medical expertise.

Defamation in the Digital Age:

The rise of social media has led to an increase in defamation cases, where individuals and businesses seek redress for reputational harm caused by false statements online. The Defamation Act 2013 modernized defamation law to address these challenges, emphasizing the need for claimants to demonstrate serious harm to their reputation.

Occupiers’ Liability:

Property owners and occupiers must ensure their premises are safe for visitors. The Occupiers’ Liability Acts 1957 and 1984 outline the duties owed to lawful visitors and trespassers, respectively. For instance, if a customer slips and falls in a supermarket due to a wet floor that was not adequately marked, the supermarket may be liable for injuries under occupiers’ liability.

Environmental Torts:

Nuisance claims often arise in environmental contexts, such as pollution or noise disturbances. For example, a community might bring a private nuisance claim against a factory emitting noxious fumes that interfere with residents’ enjoyment of their property. The balance between economic activity and environmental protection is a key consideration in such cases.

Vicarious Liability in Employment:

Employers can be held vicariously liable for the actions of their employees if the torts are committed in the course of employment. A notable case is Lister v. Hesley Hall Ltd (2002), where a school was held liable for the sexual abuse committed by a warden. This case illustrates the “close connection” test used to determine vicarious liability for intentional torts.

Privacy and Data Protection:

With the increasing importance of data privacy, tort law has adapted to address breaches of personal data. The misuse of private information tort, as seen in cases like Google Inc. v. Vidal-Hall (2015), shows how courts are evolving to protect individuals’ privacy rights against unauthorized data collection and dissemination.

Professional Negligence:

Professionals, such as lawyers, accountants, and architects, can be sued for negligence if their services fall below the expected standard of care, resulting in financial loss or other harm to clients. The case of Henderson v. Merrett Syndicates Ltd (1995) demonstrates the duty of care owed by professionals to their clients and the potential for concurrent liability in contract and tort.

Public Authority Liability:

Public authorities, such as local councils and government bodies, can be liable for negligence in the exercise of their statutory duties. In Barrett v. Enfield LBC (2001), the court recognized a duty of care owed by a local authority to a child in its care, highlighting the complex interplay between public policy and tort liability.

Personal Injury Claims:

Personal injury claims are among the most common applications of tort law. These include road traffic accidents, workplace injuries, and slips and falls. The compensation awarded in these cases covers medical expenses, lost earnings, and pain and suffering. For instance, in Smith v. Leech Brain & Co Ltd (1962), the plaintiff was awarded damages for a burn injury that led to cancer, illustrating the principle of taking the victim as you find them (the “eggshell skull” rule).

Human Rights Integration:

The integration of human rights into tort law has significant real-world implications. For example, claims involving the right to privacy or freedom from discrimination often invoke the Human Rights Act 1998. The case of Campbell v. MGN Ltd (2004) is a landmark decision where the right to privacy was balanced against freedom of expression, setting important precedents for future cases.

Insurance and Compensation Systems:

The role of insurance in tort claims cannot be overstated. Insurance coverage often determines the viability of pursuing a claim and the likelihood of obtaining compensation. The interplay between tort law and insurance is evident in motor vehicle accidents, where compulsory insurance schemes ensure that victims receive compensation even when the at-fault party cannot pay.

By examining these real-world applications, Markesinis and Deakin’s Tort Law not only elucidates theoretical principles but also demonstrates their practical significance. The textbook equips readers with the knowledge to understand and navigate the complexities of tort law in various contexts, highlighting its relevance in addressing contemporary legal challenges.