Tort Law

Citation

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

Chapter Summary

Approach

The authors present tort law as a body of law with a discernible core of principle: it determines which basic rights we have against other people, without any special arrangement, and what remedies follow when those rights are violated. The preface to this sixth edition defends that view against the suggestion of Lord Neuberger that tort cases are better decided by policy factors, and reports that the book was cut from 38 to 32 chapters and by about ten per cent in length. Chapters open with aims and objectives and close with further reading.

Chapter 1: The basics

The chapter explains the function of tort law through Donoghue v Stevenson, sorts out the different senses of "right", and surveys the range of torts and the idea that a tort is a civil wrong. It sets two rival views, the loss compensation model and the residual wrongs model, beside the authors' own, then relates tort law to human rights, contract, equity, statute, criminal law, property law and strict liability. It ends with insurance, who ultimately pays for tort law, and a section titled "Tort law as a foreign country".

Chapter 2: Trespass to the person

Treats the conduct and fault requirements, consent, necessity, statutory authority, mistakes and remedies.

Chapters 3–9: Negligence

• Chapter 3, Claims in negligence: the basics, negligence and intention, negligence and other wrongs, and remedies.
• Chapter 4, Duty of care: introduction: tests and factors for a duty, scepticism about duty, and risk and harm.
• Chapter 5, Duty of care: acts: physical injury, psychiatric illness, pure distress, harm to property, and pure economic loss under Hedley Byrne with its difficult cases.
• Chapter 6, Duty of care: omissions: the situations in which a duty to act arises, including assumption of responsibility, creation of danger, control, occupiers, landlords, employers, bailees, carriers and child carers.
• Chapter 7, Breach of duty: objectivity, balancing, common practice, breach through others and proof.
• Chapter 8, Causation: the "but for" test, divisible and indivisible harm, evidential difficulties including the Fairchild exception and loss of a chance, overdetermination, coincidences and breaks in the chain.
• Chapter 9, Actionability: remoteness, scope of duty, the SAAMCO principle, wrongful pregnancy, mitigation and public policy.

Chapters 10–15: Premises, Products, Land and Property

• Chapter 10, Occupiers' liability under the Occupiers' Liability Acts 1957 and 1984.
• Chapter 11, Product liability: product, defect, defendants, damage, defences and remedies.
• Chapter 12, Trespass to land and Chapter 13, Private nuisance: the ways of committing each tort, defences, title to sue and remedies.
• Chapter 14, Strict liability for dangerous things: the rule in Rylands v Fletcher and dangerous animals.
• Chapter 15, Torts to personal property.

Chapters 16–21: Reputation, Privacy and Other Torts

• Chapter 16, Defamation: what is defamatory, publication, defences such as truth, honest opinion and public interest, remedies and reform.
• Chapter 17, Invasion of privacy, harassment and abuse: misuse of private information, the Protection from Harassment Act 1997 and Wilkinson v Downton.
• Chapter 18, Breach of statutory duty; Chapter 19, Public nuisance; Chapter 20, The economic torts; Chapter 21, Abuse of power or position (including malicious prosecution and misfeasance in public office).

Chapters 22–29: Defences and Remedies

• Chapter 22, Defences: capacity, immunities, volenti, exclusion of liability, illegality, limitation and contributory negligence.
• Chapters 23–26, Compensatory, aggravated and exemplary, disgorgement and licence fee, and nominal and vindicatory damages.
• Chapter 27, Injunctions.
• Chapter 28, Wrongful death claims; Chapter 29, Other third-party claims.

Chapters 30–32: Liability for Others and Compensation Schemes

• Chapter 30, Accessory liability and Chapter 31, Vicarious liability: who is an employee, the course of employment, non-employees and theories of the doctrine.
• Chapter 32, Loss compensation schemes: features of such schemes, four examples and an evaluation.

Key Concepts

Chapters 1–2

• Basic rights: the rights against other people that tort law gives automatically, which the authors treat as the subject matter of the book.
• Loss compensation and residual wrongs models: two rival views of tort law, which the authors discuss as alternatives to their own account.
• Correlativity of rights and duties: a right against another person and that person's duty are two sides of the same coin.

Chapters 3–9

• Duty of care: whether the defendant was under a legal duty to take care, tested differently for acts, omissions and economic loss.
• Causation and actionability: the "but for" test and its exceptions, and the limits of recoverable loss such as remoteness and scope of duty.

Chapters 10–21 and 30–31

• Strict liability: liability without fault in products, dangerous things and vicarious liability.
• Torts protecting land, reputation and privacy: separate causes of action with their own defences.

Chapters 22–29 and 32

• Compensatory and non-compensatory damages: the aims and measures of the different heads of remedy.
• Loss compensation schemes: alternatives to tort for compensating injury.

Critical Analysis

Strengths

• A unifying account. The preface and Chapter 1 argue for tort law as a coherent set of basic rights, and the later chapters apply that idea to each tort, so the reader has a framework to organise a large subject.
• Complete coverage in a streamlined form. The sixth edition cut 6 chapters and about 10 per cent of the length yet states that it keeps the account complete, including recent developments in privacy, vicarious liability and illegality.
• Teaching apparatus. Chapters begin with aims and objectives, end with further reading, and the book includes an index of problems; Chapter 1 gives critical discussion of competing theories.
• Candid about contested law. The preface identifies recent decisions the authors regard as confused, such as those on vicarious liability and public body liability, instead of presenting them as settled.

Limitations

• A particular theoretical view. The authors set aside accounts that treat tort law as mainly about loss compensation or policy factors in favour of their own, so readers wanting a neutral survey of theory should supplement it.
• England and Wales. The cases and statutes are those of English law, and the preface is written around English developments.
• Still large. Even after the cuts, the book has 32 chapters, and its preface itself refers to the hundreds of pages making up the text, which can be heavy for a first read.
• Dated by edition. It states the law as at 2017; later cases and legislation need checking.

Where It Fits in the Course

This book is one of several general tort textbooks on the list. Horsey and Rackley's Tort Law, Lunney and colleagues' Tort Law: Text and Materials, Markesinis and Deakin's Tort Law, Street on Torts and Winfield and Jolowicz on Tort cover the same doctrinal ground at different lengths and with different amounts of commentary and extracts. McBride and Bagshaw is distinctive for the clarity of its single organising view and its direct statement of the rules.

For specialised depth the course offers Gatley on Libel and Slander on defamation, Stevens's Torts and Rights, a monograph arguing that torts are best understood as a law of rights, a theme also present in Chapter 1 of this book, and Cane and Goudkamp's Atiyah's Accidents, Compensation and the Law for the compensation-system perspective that this book takes up in Chapter 32.

How to Use This Book

The book is aimed at undergraduate and postgraduate students of tort law, and it is a main text rather than a supplement. Chapter 1 explains basic terms such as civil wrong and contract, so no earlier study of tort is needed.

Read Chapter 1 first, since the rest depends on its vocabulary. Then follow your syllabus: Chapters 3 to 9 are the core of negligence, and Chapters 22 and 23 on defences and compensatory damages cut across all torts. Use the specific torts (Chapters 10 to 21) as the syllabus requires, and Chapters 30 to 32 for vicarious liability and the compensation-system perspective. Use the aims and objectives at the start of each chapter as a checklist, follow the further reading for essay topics, and check any rule against current case law because the book states the law as of 2017.