This introductory chapter begins with a definition of tort law and the interests that tort law protects. To say that the law of tort protects an individual’s rights or interests does not mean that a claimant will succeed simply by showing that the defendant harmed them or infringed their rights. Tort law lays down a set of rules stating when exactly a harm or infringement of one’s interest will give rise to legal liability. The chapter discusses the disparate functions of tort law and illustrates them through the case of Woodroffe-Hedley v Cuthbertson [1997]. The chapter then explains the significance of the Human Rights Act 1998 for tort law.
Chapter
1. Introduction
Chapter
2. Introduction to the tort of negligence
The chapter begins by mapping and explaining the historical development of the tort of negligence, and some of the key themes underpinning the tort, before placing the discussion in the context of the modern law of negligence. The chapter then outlines the essential ingredients of a claim in negligence—a duty of care, a breach of that duty and the damage caused by that breach—before going on to explore these in practice through a close examination of the first instance judgment in X & Y v London Borough of Hounslow [2008].
Chapter
19. Actions under the rule of Rylands v Fletcher
This chapter examines the rule from Rylands v Fletcher [1868]. The rule holds that where there has been an escape of a dangerous thing in the course of a non-natural use of land, the occupier of that land is liable for the damage to another caused as a result of the escape, irrespective of fault. The rule today is best understood through a trilogy of cases: Rylands v Fletcher, Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] and Transco v Stockport Metropolitan Borough Council [2004]. The development of the rule has led to an increased overlap with ideas from nuisance and negligence.
Chapter
17. Death and Damages
This chapter first considers the effect of the death of one of the parties on an existing cause of action in tort. It then considers the circumstances in which the wrongful death of another person gives rise to a new cause of action in those who have suffered loss as a result of the death, and the way in which damages are assessed in such cases.
Chapter
3. Negligence—Introduction
This chapter introduces the tort of negligence. It first discusses the formulation of a general duty of care, highlighting the case of Donoghue v Stevenson, which established the pre-eminent role of the ‘duty of care’ concept in the tort of negligence. The chapter then turns to the role of the duty of care concept in modern negligence law, before considering the impact of the Human Rights Act 1998 on the law of negligence.
Chapter
12. Nuisance and the Rule in Rylands v Fletcher
This chapter examines the two forms of nuisance action in modern law: public and private nuisance. Public nuisance is a crime which may give rise to tort liability. Private nuisance protects an occupier's right to use and enjoy her land free from unreasonable interferences. The chapter also discusses the rule in Rylands v Fletcher, which holds that where there has been an escape of a dangerous thing in the course of a non-natural use of land, the occupier is liable for damage to the property of another caused by the escape. This is so irrespective of whether the occupier has been at fault.
Chapter
8. Breach of duty: the standard of care
This chapter focuses on the second of the requirements necessary to establish a claim in the tort of negligence—breach of duty. Breach occurs where a defendant has fallen below the particular standard of care demanded by the law. This is largely an objective test and is determined by comparing the actions of the defendant to those imagined to be done in the same circumstances by the so-called ‘reasonable man’. The questions to be answered are how the defendant ought to have behaved (what was the required standard of care) and how the defendant did behave (did they in fact fall below that standard).
Chapter
20. Vicarious liability
This chapter examines the principle of vicarious liability, a form of secondary liability through which employers may, in certain circumstances, be liable for the torts of their employees, even though the employer themselves may be entirely blameless. The imposition of vicarious liability is one of the most important exceptions to the general approach of the common law whereby liability for any wrongdoing is imposed on, and only on, the wrongdoer(s). A defendant will not be vicariously liable unless the following conditions are met: (a) there is an employer–employee relationship between the defendant and the person for whose actions they are being held liable; (b) the employee committed the tortious act while acting in the course of their employment.
Chapter
3. Duty of care: basic principles
This chapter begins by tracing the development of the duty of care starting with the case of Donoghue v Stevenson [1932]. It goes on to consider the various general tests developed and used by the courts in order to establish when a duty of care is owed. Finally, the chapter discusses the ‘incremental and by analogy’ and so-called Caparo three-stage ‘test’ established by the House of Lords in Caparo Industries v Dickman [1990] and recently reconsidered by the UK Supreme Court in Robinson v Chief Constable of West Yorkshire Police [2018].
Chapter
11. Occupiers’ liability
This chapter discusses occupiers’ liability, which deals with the risks posed, and harms caused, by dangerous places and buildings. In such cases, the occupier of the premises may be liable where a person who comes onto their land is injured in or by unsafe premises if the occupier has not taken reasonable care to ensure that those entering are safe. The general principles of negligence have been incorporated into, and modified by, statute in the form of the Occupiers’ Liability Acts 1957 and 1984. Although the Acts define the circumstances in which a duty of care will be owed (and tell us something as to its extent, as well as matters relating to its discharge and limitation), questions of breach and causation still need to be established by reference to the ordinary principles of negligence.
Chapter
13. Employers’ liability
This chapter discusses employers’ liability and, in particular, the non-delegable duty of care, which employers owe to their employees to ensure that they are reasonably safe when at work. The duty ensures that an employer remains responsible for key tasks even when their obligations have been delegated to another. The duty of care is typically said to have four components (building on Lord Wright’s statement in Wilsons & Clyde Coal Co Ltd [1938]) comprising the provision of: a competent workforce; adequate material and equipment; a safe system of working (including effective supervision); and a safe workplace.
Chapter
10. Defences to negligence
This chapter discusses three key defences in the tort of negligence: voluntary assumption of risk (consent or volenti non fit injuria), contributory negligence and illegality. The defence of voluntary assumption of risk is based on the common-sense notion that ‘one who has invited or assented to an act being done towards him cannot, when he suffers it, complain of it as a wrong’. The defence of illegality denies recovery to certain claimants injured while committing unlawful activities. Contributory negligence is a defence that operates not to defeat the claimant’s claim entirely but rather to reduce the amount of damages the defendant must pay.
Book
Simon Deakin and Zoe Adams
Markesinis and Deakin’s Tort Law, now in its 8th edition, provides a general overview of the law and discussion of the academic debates on all major topics, highlighting the relationship between the common law, legislation, and judicial policy. In addition, the book provides a variety of comparative and economic perspectives on the law of tort and its likely development, always placing the subject in its socio-economic context, thereby giving students a deep understanding of tort law. The book is composed of eight parts. Part I starts by setting the scene, Part II looks at the tort of negligence. Part III turns to special forms of negligence. This is followed by Part IV which examines interference with the person. Part V turns to intentional interferences with economic interests. The next part looks at stricter forms of liability. Part VII examines the protection of human dignity which includes looking at defamation and injurious falsehood, and human privacy. The last part looks at defences and remedies.
Chapter
1. General Introduction
This chapter first discusses the historical development of tort law, covering the origins of tort law; the forms of action; the development of fault-based liability; eighteenth-century developments; the classification of obligations; and the modern pre-eminence of negligence. It then turns to theories of tort, covering the aims of the law of tort and doctrinal classifications. Finally, the chapter considers modern influences on tort law, covering the influence of insurance; the influence of human rights; and concerns about ‘compensation culture’.
Chapter
10. Negligence: Duty of Care—Public Bodies
This chapter focuses on the negligence liability of public authorities. It discusses how negligence actions against public bodies may have both public and private law dimensions. The discussion of the public law dimension focuses on the mechanisms that have been employed in response to concerns about the political nature of some public authority decisions, and the fact that those decisions frequently involve the balancing of social or economic considerations, and the interests of different sections of the public. The discussion of the private law dimension of negligence actions against public bodies considers policy reasons for limiting the liability of public bodies and statutory responsibilities as a source of affirmative common law duties. The chapter concludes with a consideration of proposals for reform of the law in this area.
Chapter
11. Special Liability Regimes
Although much of the law of tort is based upon general common law principles, there are a number of situations where special liability regimes have been created. This chapter focuses on four of these special liability regimes. The first regime to be considered is employers’ liability, whose origins lie in nineteenth-century common law. Two other special regimes are then considered: the liability of occupiers to those coming onto their land (governed by the Occupiers’ Liability Acts of 1957 and 1984) and liability in respect of defective products (governed by the Consumer Protection Act 1987). In both these areas Parliament has intervened to remedy perceived failings in the common law. The final part of this chapter considers the common law action for breach of statutory duty. This differs from the action for negligence in that the source of the defendant’s duty is not the common law; rather, the claimant’s case is founded on a breach of a duty imposed on the defendant by Parliament.
Chapter
16. Damages for Personal Injury
The tortious infliction of injury to another person is remedied through the award of damages. This chapter discusses the different types of damages (compensatory damages, restitutionary damages, exemplary or punitive damages, aggravated damages, nominal damages, and contemptuous damages); lump sums and periodical payments; and damages for personal injury (non-pecuniary losses, loss of earnings, medical care, and deductions).
Chapter
18. How Tort Works
This chapter discusses the role played by the law of tort in the compensation and prevention of personal injuries. It first examines the way that tort operates in practice: when are claims for compensation actually made; how are claims brought and how are they resolved; how much does it cost to bring a claim; is the compensation paid adequate; and who pays for it? The chapter then turns to evaluation, and focuses upon the ‘fault principle’ that is enshrined in the law of tort — the principle that compensation should only be paid to a person injured by another's fault. It considers how the law might depart from the fault principle by the development of strict liability or no-fault compensation, concluding with an examination of radical reform options involving the abolition of tort as a means of compensating for personal injuries.
Chapter
2. Intentional Interference With the Person
This chapter begins with a brief historical background of civil wrongs now classified as intentional interference with the person, and then discusses the torts of assault, battery, false imprisonment and intentional infliction of physical or emotional harm, followed by the defences to these torts.
Chapter
5. Causation and Scope of Liability
Before liability can arise in negligence a causal link must be established between the negligence of the defendant and the injury for which the claimant claims compensation. The first hurdle that must be overcome is to show an historical connection between the defendant’s negligence and the injury (factual causation). This is normally decided by the application of the but-for test: but for the defendant’s negligence, would the claimant have suffered the injury that he or she did? If factual causation is satisfied, the claimant must then show that the defendant should be legally responsible for the damage the claimant has suffered. This second strand of the causation enquiry may involve issues of ‘legal causation’, which is to say consideration of the effect of intervening acts, whether of the claimant or of a third party, occurring between the defendant’s negligence and the claimant’s injury. It may also involve consideration of whether the defendant should not have to pay for the full extent of the damage because it is considered too remote. These issues are considered in this chapter.
