Tort Law: What Is It And How It Achieves Its Purpose

Firstly, in order to assess whether the law of tort successfully achieves its purpose, it is essential to outline what exactly that ‘purpose is’. By defining that of a tort, it is possible to underline what it is that the law of tort sets out to do. Under the common law, a tort refers to a civil wrong. Highlighting this notion of wrongdoing, the focal point of tort is revealed. It serves to adjust for harm or ‘wrongdoings’ most commonly through the awarding of damages. A mechanism of compensating; putting the individual back to the position they were in prior to their loss. The legal system developed through judicial verdicts, otherwise known as the common law; leading overtime to the set of doctrines put together by the courts that govern what we know today as a tort. Establishing the means by which a plaintiff is now able to bring forward a claim in tort. Essentially within tort, the law takes it upon itself to remedy the injury toward individuals. The means by which this body of law carries out/ executes this agenda is through a legal process that is specific to the three types of tort:

• Intentional torts
• Negligent torts
• Strict liability torts

The works of these three torts demonstrate the emphasis that is put on providing a remedy for the party that was harmed; which in turn is evident in case law. The separation and categorization of torts, between these three, additionally bring to light the importance of deterrence. Broadening the field of what a tort is and may fall under and setting out a framework of what constitutes a tort, this area of law is able to encourage the prevention of a tortious act. Now it can be seen the purpose of tort law as one that aims to correct through compensation in relation to private wrongs as well as to deter persons from committing a tort. Through an analysis of case law that illustrates how the courts deal with tort in action, the exploration of whether or not the law of tort achieves its purpose can thus be carried out.

Intentional Torts

Intentional torts are characterized by the tortfeasor's state of mind. It depends on the intention; for a tort to be present the person committing the tort would have to purposefully act.

One example is that of defamation. The case of Doyle v Smith conveys how the law dealt with a novel intentional tort case. In this case, the defendant (Smith) published a series of defamatory articles concerning the claimant's (Doyle) property development proposal. Mr. Doyle sued Mr. Smith on the grounds of libel that accused him essentially of fraud of ten million pounds as well as blackmail and malicious communications. Mr. Smith sought to rely on the defense of public interest. The courts however dismissed this the basis of the failure to satisfy the second limb of section 4; Whether the Defendant reasonably believed that publishing the statement complained of was in the public interest (section 4(1)(b)). ‘Warby J found that Mr. Smith had not adequately pleaded, nor proved, that he had a belief that it was in the public interest to publish the statement complained of. For this reason, the defense failed.’ Mr. Doyle was awarded thirty thousand for the second article and seven thousand five hundred for the third article and granted an injunction to restrain repetition. This case showcases the law's reluctance to loosen its grip on the defendant’s responsibility.

Although the first limb of the s.4 was satisfied which arguably could be viewed as carrying more weight, in that it essentially is the defense itself. The requirements for the defense were still seen by the courts as incomplete. These guidelines that the law sets out make it clear that there is no leeway for individuals acting tortuously even if there is truth in part. Suggestively an example of tort law achieving its purpose. The fact that this case considered the construction of for s.4 of the defamation act 2013 shows the measures/steps that tort law takes in order to implement and impose the notion of ‘righting a wrong’ in relation to that of a tortious wrong; in this instance libel that presented the claimant in a false light. Despite being a new case, the consistency of the courts in acting adjacent to this framework set out by legislation/statute that allows tort to achieve its purpose is reinforced by looking at older cases such as Gulf Oil ltd v Page. In this case, an exclusive contract existed between the plaintiff and defendant concerning the supply of petrol. This contract was a breach that resulted in termination. During a pending appeal following court proceedings that the defendant underwent, the plaintiff released a series of leaflets to the customers of the defendant indicating the legal proceedings, followed by a banner flown by plane that read ‘Gulf Exposed in Fundamental Breach’. The claimant sought an injunction and damages for conspiracy to injure. The claimant’s request was refused and was then put up for an appeal. The court of appeal agreed with the claimant. Due to the claimant basing his claim on conspiracy to injure as a pose to libel, it was required by the courts that a serious question of conspiracy to injure to be satisfied in order to grant an injunction.

In this instance, the courts go to the length of extending the threshold of libel; suggesting that skywriting can also constitute libel since it takes time for the writing to disperse. Comparing to past defamation cases such as Gulf Oil ltd v Page a similar/common pattern runs through. Both cases uncover the defendant’s fault and simultaneously compensate the claimant monetarily as well as deter parties from committing the same or similar tort. As a novel case, it now acts as a precedent for cases concerning bloggers relying on the defense of public interest. Thus, people are less likely to repeat based on the court’s decisions, essentially decreasing, in theory, the number of claims in this regard. The defendant’s failure to defend their libel claim serves suggestively as a success from a legal perspective in that the law of tort was able to effectively achieve the purpose that it lays out; in both deterrence and compensation. When looking at negligent torts, through breaking down this aspect of tort into fragments a split can be seen in the way that the law reaches its purpose. On one hand in the instance of when a duty of care is owed. A key element of tort when establishing negligence. ‘Tort law aims to promote an efficient allocation of resources to safety. It does this by creating incentives for people to take cost-justified precautions.’ For example, in the case of Home Office v Dorset co ltd, A group of young offenders under the supervision of the borstal officers were left unattended. Some of the boys escaped and stole a boat that collided with the claimant’s yacht. It was held that the home office owed a duty of care due to the fact that they were in a position of authority over the third party who caused the damage. Arguably the imposing of liability on the home office showcases the creation of such incentives. The duty that they owed extended to the third party because of their control over them; meaning more caution should have been taken in regard to the officers. This may be construed as the courts encouraging cost-justified precautions. The outcome for the defendant in tort will more often than not be to pay the sum ordered by the courts so any precaution taken to being held liable can be viewed as a cost-justified precaution. By the courts establishing this through monetary compensation they are essentially promoting, to both the defendant and claimant, an efficient allocation of resources to safety.

On the other hand, however, there seems to be an immunity within the law in relation to negligent acts of tort. This falls under that of the anomaly of special groups. Local authorities such as emergency services, ambulance services, and police. The case of Michael v chief constable of south wales confirms this concept that the police do not owe a duty of care in negligence to protect people from harm brought about by third parties. In the case of the victim, Ms. Michael made a call to 999 following the threat of her aggressive ex-boyfriend. The call was graded to a lower priority after the handler failed to mention the threat to kill. The police eventually arrived finding the victim died due to her wounds. The victim’s family made claims on her behalf. Two questions were posed in assessing these claims brought forward. Firstly, the Interveners’ Liability Principle. This raised the question that ‘if the police are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, do they owe a duty of care to that person under the law of negligence?’ The second, is that of “Lord Bingham’s Liability Principle” which ‘asks that if a member of the public gives the police apparently credible evidence that a third party, whose identity and whereabouts are known, presents a specific and imminent threat to his or her life or physical safety, is there a duty of care owed by the police to take reasonable steps to assess such a threat and prevent it?’ The court rejected both of the presented issues based on the reasoning firstly in relation to the interveners liability principle; ‘the duty of the police for the preservation of the peace is owed to members of the public at large, and does not involve the kind of close or special relationship (“proximity or neighborhood”) necessary for the imposition of a private duty of care.” They concluded regarding the second issue of Lord Bingham’s liability principle ‘that it would be unsatisfactory to draw dividing lines according to who reports the threat (victim or bystander), whether the threat is credible and imminent or credible but not imminent, whether the whereabouts of the threat-maker are known or unknown, and whether the threat was aimed at person, property or both.’ This case illustrates the court’s refusal to find the police as owing a duty of care to litigants. Further reinforced by the more recent case of Robinson v West Yorkshire where lord reed stated that ‘the police are not normally under a duty of care to protect individuals from a danger of injury which they have not themselves created, including injury caused by third parties, in the absence of special circumstances such as an assumption of responsibility.’ As a form of public policy caution, this blanket demonstrates that perhaps a perfect tort does not exist. It poses a difficulty in executing the law flawless and suggestively in this instance, constantly upholding and achieving its purpose. By affording this almost luxury to the police, although there is the argument that without it there would be a constant caution in carrying out their jobs in fear of liability, it also stands that persons on the other side are not given the same chances to claim because of this protection over the police. In that regard, the law can be perceived as failing to reach its purpose. The restrictions surrounding that of economic loss are based on a fear of opening the floodgates. Essentially boundaries set up by the courts as a form of precaution. However, these same precautions could be argued as preventing the law from achieving what it sets out to do. The root of economic loss stems from the aspect of the remoteness of damage. In this concern, there is an unfairness involved in imposing liability on defendants to an unspecified number of claimants and claims of indeterminate size. The boundaries put in place limit the ability to put forward a claim. Although employed as a mechanism of stopping the courts from being overwhelmed with flooding of claims under economic loss, it means those with genuine claims must endure a much harder process and are competing against a much lower likelihood. Take the case of Victorian Railways Commissioners v Consultants considered the basis of the 'floodgates argument'. The nervous shock or later economic cases that may follow became a concern for the courts as it may trigger the opening of the flood gates of similar cases. As a result, restrictions such as the exclusionary rule set out in the Derry v Peek case came about.

The purpose of which to prevent the recovery of pure economic loss unless in the case of physical damage. A means of canceling out the issue of indeterminate liability. The law in one regard does well to create precautions against the threat of the floodgates yet simultaneously evidencing the effect that such precautions have on the ability to claim. ‘In the case of Hedley Byrne v Partners, Lord Morris stated ‘if someone possessed of a special skill undertakes, irrespective of contract, to apply that skill to the assistance of another person who relies on such a skill a duty of care will arise’. This conveys the requirements set in place in order to make a claim; here it is the degree of skill. However, these requirements can also alternatively be seen as restrictions. ‘This case might be interpreted in two ways. Some criticized its lack of requirement to be unambiguous under contract as opening the floodgates. However, it limits the ability to claim by stating that the defendant must be skilled in the area commenting on.’ This poses the problem of finding a balance; preventing the opening of the floodgates yet allowing claims for economic loss. Thus, the law somewhat falls short of achieving its purpose here by hindering the claims to economic loss that people may be in need of. Therefore, that aspect of compensation is not achieved.