Tort Law



McBride, N. J., & Bagshaw, R. (2018). Tort Law (6th ed.). Pearson Education Limited.

Chapter Summary

Chapter 1: The Basics
This chapter introduces the fundamental concepts of tort law, including its function, the range of torts, and their distinctions from other legal concepts like wrongs and strict liability. It also discusses the interplay between tort law and other areas such as contract law, equity, criminal law, and property law, alongside the role of insurance and financial implications of tort claims.

Chapter 2: Trespass to the Person
This chapter covers intentional torts against individuals, including assault, battery, and false imprisonment. It explores the conduct and fault requirements, defenses like consent and necessity, and available remedies.

Chapter 3: Claims in Negligence
An introduction to negligence claims, detailing the essential elements of duty of care, breach of duty, causation, and damage. The chapter sets the foundation for understanding how negligence fits within the broader spectrum of tort law.

Chapter 4: Duty of Care: Introduction
This chapter delves into the concept of duty of care, the tests to establish it, and factors influencing its determination. It also addresses skepticism around the duty of care and the relevance of risk and harm.

Chapter 5: Duty of Care: Acts
Focuses on specific scenarios where duty of care is owed due to actions, including physical injury, psychiatric illness, and pure economic loss. The chapter examines complex cases to elucidate the principles governing these situations.

Chapter 6: Duty of Care: Omissions
Examines circumstances where liability arises from failure to act. It includes discussions on assumptions of responsibility, creation of danger, interference, and special relationships like those between employers and employees or occupiers and entrants.

Chapter 7: Breach of Duty
Analyzes what constitutes a breach of duty, emphasizing the objective standard of care, balancing risks, and the role of common practice. It also addresses proving a breach and how breaches through others are treated.

Chapter 8: Causation
Explores the causation requirement in tort claims, including the ‘but for’ test, evidential difficulties, overdetermination, and alternative approaches to causation. It also touches on policy considerations influencing causation.

Chapter 9: Actionability
Discusses the conditions under which a claim is actionable, focusing on remoteness of damage, scope of duty, public policy, and specific issues like wrongful birth and double recovery.

Chapter 10: Occupiers’ Liability
This chapter deals with the liability of occupiers towards those who enter their premises, including statutory frameworks like the Occupiers’ Liability Acts of 1957 and 1984, and the role of warnings and disclaimers.

Chapter 11: Product Liability
Addresses liability for defective products, detailing what constitutes a product, a defect, and the relevant defenses. It also examines remedies and the impact of the Consumer Protection Act 1987.

Chapter 12: Trespass to Land
Explains trespass to land, including the requirements for conduct and intention, defenses, and available remedies. The chapter also discusses who has the title to sue.

Chapter 13: Private Nuisance
Focuses on private nuisance, outlining ways the tort can be committed, the requirements for establishing unreasonable interference, and relevant defenses. Remedies and peculiar forms of the tort are also covered.

Chapter 14: Strict Liability for Dangerous Things
Covers strict liability, particularly under the rule in Rylands v Fletcher and analogous rules, including liability for dangerous animals.

Chapter 15: Torts to Personal Property
Discusses torts involving personal property, including interference with tangible and intangible property, and the associated defenses and remedies.

Chapter 16: Defamation
Explores the tort of defamation, defining what is considered defamatory, issues of publication and reference to the claimant, and the available defenses. Remedies and options for reform are also discussed.

Chapter 17: Invasion of Privacy, Harassment, and Abuse
Details torts related to privacy violations, harassment, and abuse, including misuse of private information and the Protection from Harassment Act 1997.

Chapter 18: Breach of Statutory Duty
Covers claims arising from breaches of statutory duty, including how courts resolve complex cases and specific areas like health and safety at work.

Chapter 19: Public Nuisance
Examines public nuisance, focusing on unreasonable interference, special damage, and the debate over its anomalous nature.

Chapter 20: The Economic Torts
Discusses economic torts such as inducing breach of contract, unlawful means conspiracy, and deceit. The chapter explains the elements of each tort and the recoverable harm.

Chapter 21: Abuse of Power or Position
Addresses torts related to the abuse of power, including malicious prosecution, abusive civil proceedings, and misfeasance in public office.

Chapter 22: Defences
This chapter explores various defenses available in tort law, including lack of capacity, political and witness immunities, volenti non fit injuria (consent to risk), exclusion of liability, illegality, limitation periods, and contributory negligence.

Chapter 23: Compensatory Damages
Analyzes compensatory damages, including methods of assessment, reduction principles (like receipt of benefit and contributory negligence), and third-party losses. It also discusses theoretical perspectives on damages.

Chapter 24: Aggravated and Exemplary Damages
Examines aggravated and exemplary damages, detailing their purpose, conditions for awarding them, and differences from compensatory damages. The chapter also reviews notable cases illustrating these damages.

Chapter 25: Disgorgement and Licence Fee Damages
Focuses on disgorgement and license fee damages, including their basis, calculation, and legal implications. The chapter discusses when these damages are appropriate and provides case examples.

Chapter 26: Nominal and Vindicatory Damages
Explores nominal and vindicatory damages, explaining their function in tort law, conditions for their award, and their role in upholding legal rights. The chapter includes case law to illustrate these principles.

Chapter 27: Injunctions
Covers the use of injunctions as a remedy in tort law, categorizing different types of injunctions, and discussing the conditions under which they are granted. The chapter also explores interim and final injunctions and potential reforms.

Chapter 28: Wrongful Death Claims
Discusses wrongful death claims, detailing the basics, who can claim, the parasitical nature of such claims, and the types of losses that can be recovered, such as loss of support and bereavement damages.

Chapter 29: Other Third-Party Claims
Examines other third-party claims in tort law, including claims for congenital disabilities and recovery of state losses. The chapter provides an overview of the legal principles and relevant case law.

Chapter 30: Accessory Liability
Explores accessory liability, including the basics of the concept, the requirements for establishing such liability, and the limits of this form of liability.

Chapter 31: Vicarious Liability
Focuses on vicarious liability, discussing its principles, situations where it applies, and the conditions under which an employer or principal can be held liable for the actions of an employee or agent.

Chapter 32: Loss Compensation Schemes
Examines various loss compensation schemes, their features, and how they operate as alternatives to traditional tort claims. The chapter evaluates the effectiveness of these schemes and provides examples.

This chapter summary provides an overview of each chapter in the textbook “Tort Law” by Nicholas J. McBride and Roderick Bagshaw, offering insights into the key topics and legal principles covered in the text.

Key Concepts

1. The Function and Scope of Tort Law:
Tort law is designed to provide remedies for civil wrongs that cause harm or loss to individuals. It encompasses a wide range of wrongs, including intentional acts, negligence, and strict liability offenses. The primary aims are to restore the injured party to their pre-tort position, deter wrongful conduct, and uphold individual rights.

2. Rights and Duties in Tort Law:
Tort law establishes specific rights and duties. Individuals have the right not to be harmed by others’ actions and the duty to act in ways that do not harm others. These rights and duties form the basis for various tort claims.

3. Negligence:
Negligence is a cornerstone of tort law, requiring proof that the defendant owed a duty of care, breached that duty, and caused harm as a result. Key elements include duty of care, breach of duty, causation, and damages.

4. Duty of Care:
The concept of duty of care involves assessing whether the defendant owed the claimant a duty to avoid foreseeable harm. This is often evaluated using tests and factors that consider the relationship between the parties and the context of the harm.

5. Breach of Duty:
A breach occurs when the defendant’s actions fall short of the standard of care expected under the circumstances. This standard is typically measured against what a reasonable person would do in similar situations.

6. Causation:
Causation links the defendant’s breach of duty to the harm suffered by the claimant. It includes factual causation, usually assessed by the ‘but for’ test, and legal causation, which considers whether the harm was a foreseeable consequence of the breach.

7. Actionability:
Not all wrongs are actionable in tort law. The harm must be significant, and the claim must satisfy certain legal thresholds, such as remoteness of damage and public policy considerations.

8. Defenses:
Defendants in tort cases can raise various defenses to mitigate or nullify liability. Common defenses include consent, necessity, statutory authority, contributory negligence, and assumption of risk (volenti non fit injuria).

9. Remedies:
Remedies in tort law aim to compensate the claimant for their losses. They include compensatory damages (both pecuniary and non-pecuniary), aggravated and exemplary damages, nominal damages, and injunctions.

10. Specific Torts:

  • Trespass to the Person: Covers intentional acts like assault, battery, and false imprisonment.
  • Trespass to Land: Involves unlawful interference with land.
  • Private Nuisance: Addresses interference with the claimant’s use or enjoyment of their land.
  • Defamation: Protects reputation from unjustified harm, balancing freedom of speech with protection from harm.

11. Product Liability:
Focuses on holding manufacturers and sellers liable for defective products that cause harm, governed by statutes like the Consumer Protection Act 1987.

12. Vicarious Liability:
Holds employers or principals liable for the wrongful acts of their employees or agents, provided these acts occur within the scope of employment or authority.

13. Economic Torts:
Includes torts like inducing breach of contract, unlawful interference with trade, and deceit, which protect economic interests.

14. Privacy, Harassment, and Abuse:
Encompasses torts related to the invasion of privacy, harassment, and intentional infliction of emotional distress.

These key concepts provide a foundational understanding of tort law’s principles and framework, which are essential for analyzing and resolving tort cases.

Critical Analysis

1. Evolution of Tort Law:
Tort law has evolved significantly over the years, responding to changes in society, technology, and judicial attitudes. The development of negligence as a core principle and the expansion of vicarious liability illustrate the dynamic nature of tort law. However, this evolution has also led to complexities and inconsistencies in legal principles.

2. Balancing Interests:
A critical challenge in tort law is balancing the interests of claimants and defendants. The law must protect individuals from harm while ensuring that potential defendants are not unduly burdened by excessive liability. This balance is particularly evident in cases involving public bodies, where policy considerations play a significant role in determining liability.

3. Policy Considerations:
Judicial decisions in tort cases often reflect underlying policy considerations, such as promoting safety, deterring wrongful conduct, and ensuring fair compensation. For instance, the expansion of vicarious liability aims to protect victims by ensuring that employers are accountable for their employees’ actions. However, such expansions can also raise concerns about fairness and the scope of liability.

4. The Role of Precedent:
Tort law relies heavily on judicial precedents, which provide consistency and predictability. However, reliance on precedent can sometimes lead to rigid applications of the law, hindering its ability to adapt to new circumstances. The tension between following precedent and adapting to new societal needs is a recurring theme in tort law.

5. Duty of Care and its Limits:
The concept of duty of care is central to negligence claims, yet it remains a contentious area. Courts struggle with defining the boundaries of duty, particularly in cases involving omissions, economic loss, and psychiatric harm. The reluctance to impose duties in novel situations reflects a cautious approach to expanding liability.

6. Causation Complexities:
Establishing causation is often a complex and contentious process, especially in cases involving multiple causes or scientific uncertainties. The ‘but for’ test and legal causation principles sometimes produce results that seem counterintuitive, prompting calls for reform and alternative approaches.

7. Remedies and Compensation:
The effectiveness of remedies in tort law is a critical area of analysis. While compensatory damages aim to restore the claimant, the calculation and adequacy of these damages are frequently debated. The introduction of aggravated, exemplary, and vindicatory damages reflects attempts to address specific harms but also raises questions about their appropriate application.

8. Strict Liability and its Rationale:
Strict liability torts, such as those under the rule in Rylands v Fletcher, are justified on grounds of fairness and risk allocation. However, the application of strict liability can be controversial, particularly in balancing the interests of claimants and defendants and determining what constitutes an ‘ultra-hazardous’ activity.

9. Defamation and Free Speech:
Defamation law must balance protecting reputations with safeguarding freedom of speech. Recent reforms and judicial decisions have sought to clarify this balance, but tensions remain, especially with the rise of social media and online publications.

10. The Impact of Human Rights:
The integration of human rights principles into tort law, particularly through the Human Rights Act 1998, has influenced areas like privacy, harassment, and the liability of public bodies. This integration raises questions about the compatibility of human rights with traditional tort principles and the potential for conflicting legal standards.

11. Economic and Social Implications:
Tort law has significant economic and social implications. The costs of litigation, the impact on insurance premiums, and the broader societal effects of tort decisions (such as promoting safety standards) are important considerations. Critiques often focus on the efficiency and accessibility of the tort system and whether it effectively deters wrongful conduct.

12. Comparative Perspectives:
Comparing tort law across different jurisdictions reveals varying approaches to similar issues, influenced by cultural, legal, and policy differences. Such comparisons can highlight potential reforms and improvements, as well as the challenges of harmonizing tort principles in an increasingly interconnected world.

Critical analysis of tort law reveals its strengths in providing remedies and deterrence, while also highlighting areas of contention and ongoing debates about its principles, applications, and broader impacts.

Real-World Applications and Examples

1. Medical Negligence:
Medical negligence cases are a prominent application of tort law. These cases involve claims against healthcare providers for harm caused by substandard medical care. For example, in the case of Bolam v Friern Hospital Management Committee (1957), the court established the “Bolam test” for determining the standard of care expected from medical professionals. This test requires that the conduct of the professional be judged against that of a reasonably competent member of the profession.

2. Product Liability:
Product liability cases hold manufacturers and sellers accountable for defective products that cause harm. The case of Donoghue v Stevenson (1932) is a landmark in this area, where the court established the principle that manufacturers owe a duty of care to the ultimate consumers of their products. This principle was later codified in statutes like the Consumer Protection Act 1987.

3. Workplace Accidents:
Tort law also applies to workplace accidents, where employers can be held liable for injuries sustained by employees due to unsafe working conditions. The case of Barber v Somerset County Council (2004) illustrates this, where an employer was found liable for the psychiatric injury of an employee caused by excessive workload and stress.

4. Environmental Harm:
Environmental torts involve claims for damage caused to the environment or to individuals due to environmental pollution. The rule in Rylands v Fletcher (1868) is often invoked in such cases, holding parties strictly liable for the escape of hazardous substances from their land. Modern applications include cases against corporations for oil spills or chemical leaks.

5. Defamation and Reputation Management:
Defamation law protects individuals and organizations from false statements that harm their reputation. A notable example is the case of Reynolds v Times Newspapers Ltd (2001), which established the “Reynolds privilege” for responsible journalism, balancing the protection of reputation with freedom of expression.

6. Privacy and Data Protection:
The rise of digital technology has brought privacy torts to the forefront, particularly involving the misuse of private information. The case of Campbell v MGN Ltd (2004) is significant, where the court recognized the tort of misuse of private information and balanced it against the right to freedom of expression.

7. Public Nuisance:
Public nuisance cases address interference with public rights and interests, such as obstruction of public ways or pollution affecting a community. The case of Attorney-General v PYA Quarries Ltd (1957) exemplifies this, where the operation of a quarry was deemed a public nuisance due to the noise and dust affecting local residents.

8. Economic Loss:
Claims for pure economic loss are more restricted in tort law, often requiring a special relationship between the parties. The case of Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) established the principle that economic loss can be claimed if there is a negligent misstatement causing the loss, provided there is a special relationship creating a duty of care.

9. Vicarious Liability:
Vicarious liability holds employers liable for the torts committed by their employees during the course of employment. The case of Lister v Hesley Hall Ltd (2002) demonstrated this principle, where a boarding school was held vicariously liable for the sexual abuse committed by one of its employees.

10. Trespass to Land:
Trespass to land involves unauthorized entry onto someone else’s property. The case of Entick v Carrington (1765) is a historical example, establishing that state officials could not enter private property without legal authority, a principle that continues to influence modern trespass law.

11. Road Traffic Accidents:
Tort law frequently deals with claims arising from road traffic accidents, where negligence by drivers leads to injury or damage. The case of Nettleship v Weston (1971) set a precedent by holding that learner drivers owe the same standard of care as experienced drivers.

12. Professional Liability:
Professionals, such as lawyers, accountants, and architects, can be held liable for negligence in their professional duties. The case of Henderson v Merrett Syndicates Ltd (1995) extended the principle of liability to cases where professionals give negligent advice or services, resulting in economic loss to their clients.

These real-world applications and examples illustrate the practical impact of tort law in various contexts, highlighting its role in providing remedies for harm, deterring wrongful conduct, and upholding justice in society.

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