Street on Torts

Citation

Witting, C. (2018). Street on Torts (15th ed.). Oxford University Press.

Chapter Summary

Part I: Introduction

Overview of Tort Law

Definition of torts, a brief history of tort law, the rights and interests protected by tort law, and various theoretical perspectives on tort law.

Part II: Negligent Invasions of Personal, Property, and Financial Interests

Duty of Care I: Foundational Principles

Discusses the foundational principles and the emergence and development of the duty of care in tort law.

Duty of Care II: Bodily Injury and Psychiatric Illness

Focuses on the duty of care related to bodily injury and psychiatric illness, including harm to persons, issues of pregnancy and birth, and liability for psychiatric illness.

Duty of Care III: Property Damage and Purely Financial Loss

Explores duty of care concerning property damage and purely financial loss, the relationship between tort and contract, and specific case law.

Duty of Care IV: Public Authorities

Examines the duty of care in the context of public authorities, including issues of justiciability and the application of relevant legal principles.

Breach of Duty

Outlines the standard of care required, factors relevant to establishing the required standard, professional negligence, and the proving of breach.

Causation and Remoteness

Covers causation in fact and law, new intervening causes, and the remoteness of damage in tort cases.

Defences to Negligence

Discusses contributory negligence, voluntary assumption of risk, exclusion or limitation of liability, and the illegality defence.

Liability for Defective Premises and Structures

Details liability issues related to defective premises, including occupiers’ liability and the liability of non-occupiers.

Part III: Intentional Invasions of Interests in the Person and Property

Trespass to the Person and Related Torts

Discusses battery, assault, intentional infliction of harm, protection from harassment, and false imprisonment.

Wrongful Interference with Goods

Covers trespass to goods, conversion, and other related torts.

Trespass to Land

Examines trespass to land, including defences and remedies.

Defences to Intentional Torts against the Person or Property

Reviews defences available in cases of intentional torts, including absent element, justification, and public policy defences.

Part IV: Misrepresentation-Based and ‘Economic’ Torts

False Representations

Explores deceit, passing off, and malicious falsehood.

The General ‘Economic’ Torts

Details inducing breach of contract, causing loss by unlawful means, lawful means conspiracy, and unlawful means conspiracy.

Part V: Torts Involving Strict or Stricter Liability

Product Liability

Discusses consumer protection, common law changes, and the strict liability regime for product defects.

Nuisance

Covers private and public nuisance, including who can sue and be sued, defences, and remedies.

The Rule in Rylands v Fletcher

Explores the rule, its applications, defences, and relationship to nuisance.

Breach of Statutory Duty

Details statutory obligations, parliamentary intent, proper claimants, and defences in breach of statutory duty cases.

Part VI: Interests in Reputation: Defamation

Defamation: Foundational Principles

Defines defamation, elements, and distinctions between libel and slander.

Defences and Remedies in Defamation

Discusses consent, truth, innocent dissemination, offers of amends, privileges, public interest, honest opinion, and available remedies.

Part VII: Privacy

Privacy Actions in Tort

Examines elements of privacy actions, defences, and remedies.

Part VIII: Misuse of Process and Public Powers

Misuse of Process and Public Powers

Details malicious prosecution, abuse of process, misfeasance in public office, and immunities.

Part IX: Parties and Remedies

Vicarious Liability

Discusses vicarious liability in employment, statutory duty, agency, independent contractors, and justifications for vicarious liability.

Capacity and Parties

Examines the capacity of various parties, including the Crown, companies, mentally disordered persons, children, and joint tortfeasors.

Remedies

Covers limitation of actions, mitigation of loss, damages, death, and injunctions.

Key Concepts

1. Overview of Tort Law

Tort Definition: A tort is a civil wrong that causes harm or loss, leading to legal liability.

History: The evolution of tort law from early legal systems to modern jurisprudence.

Protected Interests: Includes personal safety, property, economic interests, and reputation.

Theoretical Perspectives: Various schools of thought on the purpose and function of tort law, such as corrective justice and economic analysis.

2. Duty of Care

Foundational Principles: The establishment of duty of care as a cornerstone of negligence law.

Bodily Injury and Psychiatric Illness: Legal obligations to prevent physical and mental harm.

Property Damage and Financial Loss: Duty to avoid causing damage to property and purely financial harm.

Public Authorities: Special considerations when dealing with public bodies and their duties.

3. Breach of Duty

Standard of Care: The level of caution and concern an ordinarily prudent and rational person would use in similar circumstances.

Factors Influencing Standard: Includes foreseeability of harm, the seriousness of potential harm, the burden of taking precautions, and the social utility of the defendant’s conduct.

Professional Negligence: Higher standards of care expected from professionals.

4. Causation and Remoteness

Causation in Fact: The ‘but for’ test to establish if the harm would not have occurred but for the defendant’s actions.

Causation in Law (Legal Causation): Consideration of whether the harm is a foreseeable result of the defendant’s actions.

Remoteness of Damage: The extent to which the defendant is liable for unforeseeable consequences.

5. Defences to Negligence

Contributory Negligence: When the plaintiff’s own negligence contributed to the harm.

Voluntary Assumption of Risk: The plaintiff knowingly and willingly assumes the risk of harm.

Exclusion or Limitation of Liability: Contractual or statutory limitations on liability.

Illegality: When the plaintiff’s unlawful conduct bars recovery.

6. Liability for Defective Premises

Occupiers’ Liability: Duties of those in control of premises towards lawful visitors and trespassers.

Liability of Non-Occupiers: Responsibility for hazards created by independent contractors or others.

7. Intentional Torts

Trespass to the Person: Includes battery, assault, and false imprisonment.

Trespass to Goods: Unlawful interference with another’s personal property.

Trespass to Land: Unauthorized entry onto another’s property.

Intentional Infliction of Harm: Actions designed to cause distress or harm.

8. Economic Torts and Misrepresentation

Deceit: Knowingly making false statements to cause loss.

Passing Off: Misrepresenting goods or services as those of another.

Malicious Falsehood: False statements made maliciously causing damage.

9. Strict Liability Torts

Product Liability: Holding manufacturers strictly liable for defective products causing harm.

Nuisance: Interference with the use and enjoyment of land.

Rylands v Fletcher Rule: Liability for damage caused by hazardous activities.

10. Breach of Statutory Duty

Statutory Obligations: Breaches of duties imposed by legislation.

Parliamentary Intent: Determining if legislation intends to confer a right to sue.

11. Defamation

Elements: Publication of a false statement that harms someone’s reputation.

Defences: Truth, fair comment, privilege, and consent.

Remedies: Damages and injunctions to prevent further harm.

12. Privacy Torts

Elements: Unauthorized use of private information.

Defences and Remedies: Legal justifications and available remedies for breaches of privacy.

13. Misuse of Process and Public Powers

Malicious Prosecution: Wrongfully subjecting someone to the legal process.

Abuse of Process: Using legal procedures for ulterior motives.

Misfeasance in Public Office: Wrongful acts by public officials.

14. Vicarious Liability

Employment Relationships: Liability of employers for actions of their employees.

Independent Contractors: Distinctions between employees and contractors regarding liability.

15. Capacity and Parties

Various Parties: Legal capacity and liabilities of different parties such as the Crown, companies, and minors.

Joint Torts: Liability arising from actions of multiple parties.

16. Remedies

Damages: Compensation for loss or harm.

Injunctions: Orders to prevent or compel actions.

Limitation Periods: Time limits within which legal action must be taken.

Critical Analysis

1. Evolution and Modernization of Tort Law

Historical Context: The historical development of tort law reflects societal changes and the evolution of legal principles. The gradual shift from primitive forms of justice to structured legal frameworks demonstrates the increasing complexity and specialization of tort law.

Influence of Landmark Cases: Landmark cases, such as Donoghue v Stevenson and Rylands v Fletcher, have significantly shaped modern tort law by establishing foundational principles like the duty of care and strict liability. These cases illustrate the dynamic nature of tort law and its capacity to adapt to new challenges and societal expectations.

2. Theoretical Perspectives

Corrective Justice vs. Economic Analysis: Different theoretical frameworks provide varied insights into the purpose and function of tort law. Corrective justice emphasizes rectifying wrongs and restoring parties to their original positions, while economic analysis focuses on efficiency and minimizing the costs of accidents and litigation.

Rights-Based Approaches: The focus on protecting individual rights, such as personal safety, property, and reputation, underscores the normative foundations of tort law. This perspective aligns with broader human rights principles and highlights the importance of safeguarding individual autonomy and dignity.

3. Duty of Care and Its Expansion

Challenges in Defining Duty: The concept of duty of care is both foundational and contentious in tort law. The criteria for establishing duty have evolved, with courts grappling with the balance between foreseeability, proximity, and public policy considerations.

Expanding Scope: The expansion of duty of care to cover areas like psychiatric harm and pure economic loss reflects the law’s responsiveness to new types of injuries and losses. However, this expansion also raises concerns about the potential for excessive litigation and the burden on defendants.

4. Causation and Remoteness

Complexity of Causation: Establishing causation in tort cases can be complex, particularly in situations involving multiple potential causes or long-term injuries. The distinction between factual causation and legal causation adds layers of complexity, requiring careful judicial analysis.

Policy Considerations in Remoteness: The principle of remoteness serves as a limitation on liability, ensuring that defendants are not held liable for unforeseeable consequences. This principle reflects a policy decision to balance the interests of plaintiffs and defendants, promoting fairness and predictability in the law.

5. Defences and Limitations

Role of Defences: Defences such as contributory negligence and voluntary assumption of risk play a crucial role in moderating the scope of liability and ensuring that plaintiffs’ own conduct is considered in the allocation of responsibility.

Challenges with Illegality Defence: The illegality defence, which bars recovery for plaintiffs engaged in unlawful activities, raises complex moral and legal questions. Courts must navigate the tension between discouraging illegal behavior and ensuring that wrongdoers are still held accountable for their actions.

6. Vicarious Liability and Its Justifications

Rationale for Vicarious Liability: Vicarious liability, where employers are held liable for the actions of their employees, is justified on grounds of control, benefit, and risk distribution. This principle ensures that those who benefit from an enterprise bear the risks associated with it.

Challenges in Application: Determining the boundaries of vicarious liability, especially in cases involving independent contractors or quasi-employment relationships, presents ongoing challenges. Courts must carefully consider factors such as control, integration, and the nature of the work.

7. Remedies and Their Effectiveness

Compensation and Deterrence: The primary remedies in tort law, including damages and injunctions, aim to compensate victims and deter wrongful conduct. The effectiveness of these remedies in achieving justice and preventing harm is a critical area of analysis.

Equity and Proportionality: Ensuring that remedies are equitable and proportional to the harm suffered is essential for maintaining the legitimacy of tort law. Courts must balance the need for adequate compensation with the principles of fairness and proportionality.

8. Impact of Statutory Reforms

Role of Legislation: Statutory reforms, such as the Consumer Rights Act 2015, have significant implications for tort law. These reforms reflect legislative intent to address specific issues, enhance consumer protection, and provide clearer guidelines for liability.

Interaction with Common Law: The interaction between statutory provisions and common law principles can create complexities and uncertainties. Courts play a crucial role in interpreting and harmonizing these sources of law to ensure coherent and effective legal outcomes.

Real-World Applications and Examples

1. Medical Negligence

Case Study: Bolam v. Friern Hospital Management Committee: This landmark case established the ‘Bolam test’ for professional negligence, requiring that a professional act in accordance with a practice accepted as proper by a responsible body of medical opinion.

Application: In modern medical practice, this principle guides the assessment of whether a healthcare provider has met the standard of care required, influencing litigation and regulatory standards in healthcare.

2. Product Liability

Case Study: Donoghue v. Stevenson: This foundational case introduced the principle that manufacturers owe a duty of care to the end users of their products.

Application: Modern product liability cases continue to apply this principle, holding manufacturers accountable for defects that cause harm, and driving improvements in product safety standards and consumer protection.

3. Environmental Torts

Case Study: Cambridge Water Co. v. Eastern Counties Leather: This case highlighted the challenges in proving causation and remoteness in environmental contamination claims.

Application: Environmental torts today often involve complex scientific evidence to establish causation and quantify damages, influencing environmental regulation and corporate practices in managing environmental risks.

4. Defamation and Media Law

Case Study: Reynolds v. Times Newspapers Ltd: This case introduced the ‘Reynolds defense’ for responsible journalism, balancing the need for free speech with the protection of reputation.

Application: Media organizations frequently rely on this defense in defamation cases, emphasizing the importance of ethical journalism and accurate reporting in protecting against reputational harm.

5. Privacy and Data Protection

Case Study: Campbell v. MGN Ltd: This case established key principles in the protection of privacy, particularly the misuse of private information.

Application: In the digital age, privacy torts are increasingly relevant, with individuals and organizations seeking remedies for data breaches, unauthorized disclosures, and intrusions into private life.

6. Workplace Liability

Case Study: Lister v. Hesley Hall Ltd: This case expanded the scope of vicarious liability to include wrongful acts closely connected with employment.

Application: Employers today must be vigilant in monitoring and managing employee conduct, implementing robust policies and training to mitigate risks and ensure compliance with legal standards.

7. Occupiers’ Liability

Case Study: Wheat v. Lacon & Co. Ltd.: This case established the principles for determining liability of occupiers for injuries sustained on their premises.

Application: Modern occupiers’ liability cases continue to apply these principles, holding property owners and managers responsible for maintaining safe premises and addressing hazards to prevent accidents.

8. Nuisance

Case Study: Sturges v. Bridgman: This case defined private nuisance and established the principle that a nuisance must be a substantial and unreasonable interference with the use and enjoyment of land.

Application: Today, nuisance claims address a variety of issues, including noise, pollution, and land use conflicts, balancing the rights of property owners with the need to prevent harmful interferences.

9. Economic Torts

Case Study: OBG Ltd. v. Allan: This case clarified the boundaries of economic torts, such as inducing breach of contract and causing loss by unlawful means.

Application: Economic torts play a crucial role in business disputes, ensuring that parties are held accountable for wrongful economic interferences and promoting fair competition.

10. Intentional Infliction of Harm

Case Study: Wilkinson v. Downton: This case established the tort of intentional infliction of emotional distress.

Application: Courts today use this principle to address cases where individuals deliberately cause severe emotional or psychological harm, ensuring remedies for victims of intentional wrongdoing.

11. Defamation and the Internet

Case Study: Godfrey v. Demon Internet Ltd.: This case dealt with defamation in the context of internet service providers and their liability for defamatory content posted by third parties.

Application: The rise of social media and online platforms has increased the relevance of defamation law in the digital age, requiring adaptations to address issues of online speech and intermediary liability.

12. Privacy and Technology

Case Study: Google Inc. v. Vidal-Hall: This case addressed privacy rights in the context of internet search engines and the right to be forgotten.

Application: Privacy law continues to evolve with technological advancements, with courts addressing complex issues related to data protection, online privacy, and the balance between freedom of information and individual rights.

13. Workplace Safety

Case Study: Wilsons & Clyde Coal Co. v. English: This case established the duty of employers to provide a safe working environment.

Application: Modern occupational health and safety regulations build on these principles, requiring employers to implement comprehensive safety measures and protocols to protect workers from harm.

14. Medical Consent

Case Study: Montgomery v. Lanarkshire Health Board: This case redefined the standard for informed consent in medical treatment, emphasizing the importance of patient autonomy.

Application: Healthcare providers must ensure that patients are fully informed about the risks and benefits of treatment options, promoting patient-centered care and informed decision-making.

15. Consumer Protection

Case Study: Caparo Industries plc v. Dickman: This case established the three-part test for duty of care, which is particularly relevant in cases involving financial advice and consumer protection.

Application: Financial institutions and advisors must adhere to high standards of care to avoid negligent misrepresentation and protect consumers from financial harm.