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1.1 Introduction

Consider the following examples: → A pedestrian is knocked down and killed by a speeding motorist . → An office worker suffers psychiatric injury after being subjected to a campaign of trans phobic bullying by her supervisor . → A runner trips over a loose paving slab on her morning run, breaking her ankle . → A school fails to diagnose a student’s dyslexia, believing the student’s poor performance is simply down to laziness. The student fails their GCSEs . → A house burns down as a result of an explosion at a nearby oil refinery . → A prisoner is kept in their cell for over 24 hours after prison guards walk out on an unof ficial strike . → A group of ramblers take a shortcut over a field without the farmer’s permission . → A student collapses unconscious after an evening of heavy drinking. His housemates lock him in the bathroom overnight while he sobers up . → A first-time buyer buys a house on the basis of an inaccurate survey. As a result, the property is worth significantly less than they paid for it . → A professional footballer wants to prevent a national newspaper publishing allegations about his private life . → The lead singer of a Smiths tribute band is branded a ‘meat-eating wannabe who can’t hold a note’ on their former management’s website .

In each of these examples there is a potential tort claim. In fact, most of these scenarios (as with many of those that begin the following chapters) are drawn from cases you will study during your tort law course. Such tales—often tragic and bizarre in equal measure—go to the heart of tort law. There are few, if any, other subjects where you will encounter wayward cricket balls, learner drivers driving into lampposts and electro-convulsive therapy within the space of a few pages. And yet, despite its varied case law, many students find tort law a difficult subject to grasp—at least initially. (Something we acknowledge here in a spirit of supportive openness (we hope!) rather than with smug condescension.) Indeed, even before PROPERTY OF OXFORD UNIVERSITY PRESS

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you begin your adventures into a subject where general principles at times appear to point one way and common sense the other, the title of the book might present a more immediate obstacle: what is ‘tort law’? 1

1.2 What is tort law? A ‘tort’ is a civil wrong for which the law provides a remedy. The origins of the word ‘tort’ come indirectly from the Latin tortus (meaning crooked or twisted), although the more usual translation is that from modern French where it corresponds with ‘wrong’. Thus, at its simplest, the law of tort is the law of non-criminal wrongs. 2 The plural ‘wrongs’ here is deliberate. Tort law is the name given to a diverse collection of legal wrongs. Some of these will, no doubt, be familiar—the torts of negligence, trespass (usu ally to land), assault, battery, libel, for example often feature in the news. Others may be less familiar—such as the tort of nuisance, which protects an individual’s use and enjoy ment of their land, or those named after the cases from which they stem, such as the tort in Wilkinson v Downton [1897] which provides a remedy for indirect physical harm caused by an intentional act. Beyond this, however, there is no general agreement on what defines, and distinguishes, a ‘tort’. Moreover, no one really knows quite how many torts there are. The boundaries between torts are fluid and the popularity of individual torts can change—‘old’ torts die out (the rule in Rylands v Fletcher [1868] may be a case in point here) 3 while new ones emerge (see e.g. the tort of misuse of private information or ‘privacy’ ( Vidal-Hall v Google Inc [2014])). 4 At other times, tort law adapts—with greater or lesser success—to address social problems including historic child sex abuse 5 (vicarious liability), sexual violence 6 and image-based sexual abuse (trespass to the person, harassment, the tort in

1. This chapter draws on and develops the ideas, insights and structure of Alan Thomson’s introduction to tort law lectures given at the University of Kent. We both worked with Alan, who retired in 2010, and are grateful for his collegiate support. In particular, we thank him for his permission to use his case example of Woodroffe Hedley v Cuthbertson [1997]. 2. There are, of course, other civil wrongs which fall outside the remit of tort—including breach of contract and equitable obligations. The principal distinction between torts and breaches of contract is that contracts are voluntarily undertaken obligations, whereas the wrongs which make up the law of torts are breaches of imposed obligations—in other words, obligations which we have not chosen to be subjected to. E.g. my obligation not to hit you is an obligation I am subjected to whether I like it or not. By contrast, if I contract to sell my car to you, my obligation to hand over the car is an obligation I have chosen to be subjected to. The distinction between torts and breaches of equitable obligations is less straightforward, essentially turning on an outdated jurisdictional division between the types of court which first recognised these obligations. These days it is increasingly com mon to see some equitable wrongs, such as breach of confidence, treated as a tort ( Campbell v Mirror Group Newspapers Ltd [2004] ). 3. Discussed in Chapter 19 . 4. Discussed in Chapter 16 . 5. Paula Giliker ‘“Tailoring” the Close Connection Test for Sexual Abuse Victims: Vicarious Liability in the Court of Appeal’ University of Bristol Law School Blog 26 April 2021. 6. Nikki Godden ‘Tort Claims for Rape: More Trials, Fewer Tribulations?’ in Janice Richardson and Erika Rackley (eds) Feminist Perspectives on Tort Law (Routledge 2012) 163–78. PROPERTY OF OXFORD UNIVERSITY PRESS

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What is tort law?

Wilkinson v Downton [1897]), 7 the failure of medical devices 8 (product liability), work place accidents 9 and reproductive autonomy 10 (negligence). 11 Indeed, such is tort law’s utility that Allan Beever refers to it as the ‘Swiss Army knife of the common law’. 12 While it is clear that tort law covers a lot of ground, what is less clear is the extent to which the various individual torts—and so the law of torts as a whole—share common features, principles and justifications. For example, while the tort of negligence encompasses unin tentional conduct (requiring the defendant to act carelessly or negligently, in that they fail to reach a particular standard set by law, in order to be liable), others—such as battery or tres pass to land—require an intentional act or some other form of stricter liability (see e.g. the rule in Rylands v Fletcher ). 13 While most torts are found in the common law, others—for example the tort of harassment—are found in statute. 14 Indeed, the best view may be Tony Weir’s, who has observed that ‘[t]ort is what is in the tort books, and the only thing holding it together is the binding’. 15 It is certainly true that in comparison to, say, contract law (traditionally, tort law’s ‘other half’ in the law of obligations), 16 which is said to be grounded, among other things, in the morality of promise-keeping, tort law appears to lack any such common theme or ambition, and resembles little more than a miscellaneous collection of relatively self-contained wrongs. As we shall see, in recent years one particular tort—the tort of negligence—has gained prominence, and started to gain ground from other, older torts. If this development contin ues it may be possible that we will end up with a law of tort sharing a similar unity and coher ence as is found in contract law. However, this move has not been universally welcomed and, in any case, we are not there yet. In any event, definitions in the abstract may not be particularly helpful. The description of tort law as a collection of civil wrongs for which the law provides a remedy (usually in the form of monetary compensation) 17 or Peter Cane’s suggestion, that it is a way of protecting people’s interests through ‘a system of precepts about how people may, ought and ought not to behave in their dealings with others’ 18 simply prompts another question: what wrongs or interests are we talking about? Harm in Tort’ in Kirsty Horsey (ed) Diverse Voices in Tort Law (Bristol University Press 2024) 221. 8. Emily Jackson ‘Product Liability, Medical Devices and Harm to Women’s Bodies’ in Horsey ibid, 129 9. See section 2.3.2 . 10. Julie McCandless and Kirsty Horsey ‘Reproductive Harm, Social Justice and Tort Law: Rethinking “Wrongful Birth” and “Wrongful Life” Claims’ in Horsey n7 79. 11. For an example of an area where tort law might develop further see Craig Purshouse and Ilias Trispiotis ‘Is “Conversion Therapy” Tortious?’ (2022) 42 Legal Studies 23–41. 12. Allan Beever Rediscovering the Law of Negligence (Hart 2007) 197 cited in ibid 25. 13. The only time liability is ‘strict’ in tort law is in the application of the mechanism of vicarious liability. Discussed in Chapter 20 . 14. Discussed in Chapter 15 . 15. Tony Weir An Introduction to Tort Law (2nd edn OUP 2006) ix. 16. We should also acknowledge here that it is now common to identify ‘unjust enrichment’ or ‘restitution’ as 7. Kirsty Horsey and Erika Rackley ‘Tort Law’ in Rosemary Auchmuty (ed) Great Debates on Law and Gender (Palgrave 2018) 14–19; Aislinn O’Connell ‘Image-Based Sexual Abuse and Gendered Conceptions of

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a third branch of the law of obligations. 17. Or, in some cases, an injunction. 18. Peter Cane The Anatomy of Tort Law (Hart 1997) 13.

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1.2.1 What interests does tort law protect? To return to the earlier examples of situations where an action in tort law might arise, in each case someone has suffered an unwanted harm. Some involve physical injury (e.g. the damage caused to the runner tripping over the loose paving slab) or even death (in the case of the pedestrian killed by the speeding motorist). In others, the harm or injury is psychiatric (e.g. that suffered by the office worker). However, not all cases involve physical or mental injury to the potential claimant; other types of harm include damage to property (e.g. that caused by the explosion at the oil refinery) and financial loss (e.g. in the case of the buyer whose house is not worth as much as they thought or, more controversially, the student who has not been recognised as dyslexic). In some of the examples, however, there appears to be no damage or harm at all. But there is still a potential tort. Even assuming for the sake of argument that the ramblers walk over the farmer’s land without causing damage (they do not, for example, tear up the ground or pick flowers) and that the housemates unlock the bathroom door before the drunk student wakes up the next morning (so he is unaware of having been locked in), we can still say that in these cases there is an interference with the individual’s rights . One has a right to determine who has access to or makes use of their land—in other words, the law says that you get to control the use, if any, that others may make of your property. Similarly, each of us has a right to bodily freedom and autonomy. Others are not entitled to touch us or confine our movements (subject to certain exceptions) without our consent. Therefore, even though the farmer or the drunk student may not have been harmed , in the sense of being left worse off, as a result of these actions, we can say that they have been wronged . As such, tort law is not just, or indeed primarily, concerned with harm as much as it is with rights. So what rights do we have? We have mentioned already rights to bodily freedom and autonomy , which we can also regard as embracing physical and psychological integrity. We have also noted rights to or interests in property , such as land. Others include rights to reputation —as in the example, at the beginning of this chapter, of the lead singer of the tribute band—and privacy —as with the professional footballer. This list is not, and should not be regarded as, closed. Indeed, one of the main roles of tort law is to mark out what rights or interests the law will recognise and protect. There are three further points to make in relation to an understanding of tort law as a system of rules protecting our rights or interests. First, while an understanding of tort law enables us to present it in a neat, linear form, it also involves something of a mis-description of the way the distinct torts are arranged and how they interrelate. What we mean by this is that while some torts exist and are defined only to protect a single interest (e.g. defamation protects a person’s reputation, nuisance protects an individual’s interest in enjoying their land), the tort of negligence—the biggest and most important of the torts—offers protection to all our legally recognised rights and interests. 19 What this means is that often, for any single harm or injury, there will be more than one tort upon which a claim may be founded. So, if you hit me (as well as any criminal claim) I may have a claim for battery (one of the torts specifically protecting my right to bodily integrity) or a claim in negligence—depending on the circumstances of the case. Moreover, it is possible to define the rights and interests the law recognises and protects in broader or narrower terms. We could say that we have a single interest in our physical PROPERTY OF OXFORD UNIVERSITY PRESS

19. As a result, any attempt to study tort according to protected interest (see e.g. Cane ibid and more recently Robert Stevens’s suggestion for a tort textbook structured according to ‘rights’ ( Torts and Rights (OUP 2007) 303)) would inevitably involve breaking up the tort of negligence, since this protects and so cuts across all such interests.

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What is tort law?

integrity, embracing both bodily and mental wellbeing. Alternatively, we could separate these into two. As we shall see, the law is somewhat ambivalent here; for some purposes it draws just such a distinction, yet for others it does not (see, for instance, Page v Smith [1996] ). The same goes for our interest in our assets or property. The position is muddied further when we note that even where a tort is designed to pro tect a single interest (e.g. defamation and nuisance), successful claimants can also recover for other harms suffered as a consequence of their interest having been infringed. For example, if you defame me, the basis of my claim is that you have harmed my reputation. However, if my claim is successful I can also recover for any financial losses I suffer as a result of my repu tation having been tarnished (for instance, if it led to me losing my job and hence a loss of income). As such, we may say that even ‘single interest’ torts end up protecting a variety of interests and remedying a variety of harms (see Table 1.1 ). Secondly, tort law does not recognise all interferences with an individual’s interests as actionable harms. Tortious liability may be limited when it is thought to be undesirable for policy reasons. For example, we all have an interest in our mental wellbeing, but the courts have placed significant limitations on claims in respect of such harm. 20 At other times, the harm suffered may not be recoverable at all. 21 Of course, the absence of tort liability does not mean that a defendant can act without fear of legal consequences. In particular, there may still be a criminal sanction. The speeding motorist who does not hit the pedestrian does not commit a tort (assuming they cause no other harm), however they may still be guilty of a criminal offence in relation to their dangerous driving. 22 We may also note that tort law does not protect the interests that it does recognise equally . Sexual harassment, autonomy and (until recently) a person’s interest in their private life, for example, have traditionally been only weakly protected in comparison with, say, physical injury or damage to an individual’s reputation. 23 Finally, and following on from the previous point, 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. 24 Moreover, these rules—the hurdles a claimant must get over for their claim to succeed— vary from tort to tort. As such, we can speak only in very loose terms about there being general principles in the law of tort. So, although we can say that all claims in tort share the common feature that they concern infringements with a claimant’s rights or interests, in reality you will gain a better understanding of how tort law actually operates in practice by recognising the individual torts as largely distinct. 20. Chapter 5 . 21. See further Dryden and others v Johnson Matthey plc [2018] and discussion in section 2.1 . 22. Examples of torts which overlap with/are crimes include the torts of assault and battery ( sections 15.1–15.3 ) and public nuisance ( section 18.5 ). There are many torts where there is either no corresponding crime or where a criminal prosecution is very rare—e.g. medical negligence. The key difference between tort law and criminal law is that while actions in criminal law are brought by the state to punish the defendant, in tort law actions are brought by an individual (usually the injured party) to provide a remedy (i.e. compensation) for loss or harm. 23. See generally Joanne Conaghan ‘Tort Law and Feminist Critique’ (2003) 56 Current Legal Problems 175 and McCandless and Horsey n10 . 24. These are both substantive and procedural. This book concentrates on the substantive rules, however it is important to remember that behind these lies a significant body of procedural rules, e.g. relating to jurisdiction, limitation periods and so on, that are crucial to the operation of tort law in practice. See further Stuart Sime A Practical Approach to Civil Procedure (24th edn OUP 2021).

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TABLE 1.1 Interests protected by the torts discussed in this book

Interest

Tort

Personal (both physical and mental) integrity, including the right to self-determination

Negligence (including occupiers’ liability, employers’ liability) Product liability Trespass to the person (assault, battery, false imprisonment) Breach of statutory duty

The tort in Wilkinson v Downton Claims under the Protection from Harassment Act 1997 Nuisance (public)

Damage to property

Negligence (including occupiers’ liability, employers’ liability)

Product liability Trespass to land

Nuisance (public and private) The rule in Rylands v Fletcher

‘Pure’ financial loss (i.e. loss not consequent on other injuries) _________________________ ‘Consequential’ financial loss

Negligence _________________________ Negligence Product liability

Defamation (libel and slander) Nuisance (public and private) Trespass to land Trespass to land Nuisance (public and private) The rule in Rylands v Fletcher Negligence Claims under the Protection from Harassment Act 1997

Possession, use and enjoyment of land

Reputation Negligence Trespass to land Nuisance (public and private) Breach of confidence Claims under the Protection from Harassment Act 1997 Misuse of personal information PROPERTY OF OXFORD UNIVERSITY PRESS Defamation (libel and slander) Breach of confidence Privacy

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What is tort law?

Policy

At a number of points in your study of tort law you will come across references to ‘policy’. Most often this will be when judges or commentators explain decisions on the basis that they give effect to particular ‘policy’ considerations. As such, policy tends to be used to describe a certain type of factor or consideration which courts do or may take into account when deciding cases and framing legal rules. But what types of factor fall under the head ing ‘policy’? The difficulty here is that the language of ‘policy’ appears to be used by different people at different times to mean different things. Even worse, those who make reference to ‘policy’ often fail to explain exactly what they mean by this. Sometimes, the language of ‘policy’ is used to describe all factors that may have a bearing on how a case should be decided and how the law should develop. On this approach, every argument you might make about the law—what rules we should have, who should win a given case—is an argument of policy. Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995], for example, seemed to be using ‘policy’ in this sense when he said that ‘the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied’ (at 749). Policy here covers arguments of morality or justice, economic considerations, questions of resource allocation—in short, everything . The question here is not what role policy should play in the law—all law is necessarily driven by policy of some sort. Rather, it is simply what particular policies the law should advance or embody. More commonly, however, ‘policy’ tends to be used to describe a particular subset of factors or arguments that the courts may employ when deciding cases. Here, policy is simply one thing the courts may turn to when determining the shape of the law, and is to be contrasted with other sorts of factors or considerations. This was most famously articulated by the legal philosopher Ronald Dworkin, who distinguished ‘policy’ from ‘principle’. 25 His distinction was essentially that between moral standards and other sorts of arguments—principles are based on notions of individual fairness and justice, while policy by contrast covers so-called collective goals such as wealth maximisation or the encouragement of particular activities or trades. As such, policy is essentially defined by reference to what it is not. Policy is anything other than arguments of justice and morality.

The same point has been made by Joanne Conaghan and Wade Mansell, who describe policy as a ‘“catch-all” phrase, used by judges and commentators alike, to describe judicial consider ations which are “non-legal”, that is not based on a recognised legal principle or an established precedent’. 26 Typically then, policy arguments look beyond the particular facts of the case at hand and the relationship and dealings between the particular claimant and defendant, to consider the wider social, economic and political impact of imposing liability. In other words, the question is not simply ‘is it fair to make the defendant liable to the claimant?’ but rather ‘what would be the consequences for society at large for imposing liability in situations such as this?’ Unsurprisingly, perhaps, such arguments tend in practice to be used more commonly to deny rather than to allow claims. → PROPERTY OF OXFORD UNIVERSITY PRESS

25. Ronald Dworkin Taking Rights Seriously (Duckworth 1977). 26. Joanne Conaghan and Wade Mansell The Wrongs of Tort (Pluto Press 1999) 204.

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Whether the courts should take policy considerations into account when deciding cases (and, if so, to what extent) is both controversial and disputed. Some lawyers argue that courts should never base their decisions on policy factors. This was Dworkin’s argument and has, more recently, been repeated by Robert Stevens: We should not ask our judges to resolve questions of policy and, if asked, they should decline to provide answers that they have neither the ability nor legitimacy to give. Judges should adjudicate on rights and leave issues of policy to be discussed by aca demics and resolved by the legislature. 27 What this assumes is that certain types of argument and consideration fall within the (demo cratic and/or intellectual) competence of judges and others do not, and that judges should therefore base their decisions only on the factors they are competent to evaluate. But how do we draw this line? And is it tenable in practice? In many ways, the distinction between policy and principle draws a questionable dichotomy. Everyone is agreed that sometimes the courts modify or develop the law. In other words, some times courts do more than simply follow the decisions reached and rules set down in previous decisions and statute. As such, they have a ‘creative’ (quasi-)legislative function. This means that courts will sometimes have to look beyond the established precedent and statute law—to ‘extra-legal’ considerations of fairness or justice, economic efficiency and the like—to deter mine how a case should be decided. 28 Why then should we consider, as the likes of Dworkin and Stevens argue, that some ‘extra-legal’ considerations are acceptable for courts to take into account, while others must be excluded? The democratic argument—that it is the business of Parliament and not the courts to decide what the law should be—is an argument against all judicial creativity. It does not matter whether the courts employ moral arguments or other sorts of considerations. In each case, the law is open to the challenge that key decisions about our rights and liabilities are not being taken by a democratically elected body. And, in each case, the answer is that this may not be democrati cally ideal but this is the way the law has always been and always will be. Similarly, the argument that judges are not ‘experts’ on policy matters, and so should con sider only ‘moral’ rights or questions of fairness and justice when deciding new points of law, makes little sense unless we can say that judges are experts on such moral questions. Otherwise, judges’ lack of expertise should prevent them from making arguments of policy or of moral principle. And yet it seems that there is no reason to view our judges as having any particular understanding or competence in relation to questions of morality and justice or that, by contrast, their understanding of policy matters is noticeably weaker. As such, it is far from apparent why certain types of argument—of morality, fairness, etc—can be entrusted to judges while others—such as policy considerations—cannot. Therefore, in the end the argument that courts should not take policy considerations into account when deciding cases appears rather dogmatic. Moreover, irrespective of whether

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27. Stevens n19 311. See also Peter Cane’s discussion of this in his review of Stevens’s Torts and Rights ((2008) 71 Modern Law Review 641, 644–6). 28. Although cf Beever n12 .

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1.3 The disparate aims of tort law Tort law has both backward- and forward-looking elements. It looks backwards at what happened—the ‘wrong’—and addresses the harm done, while also looking to the future and at ways of regulating behaviour and developing responses to the risk of harm. It seeks to protect an individual’s interests both prospectively (i.e. to prevent or deter future harm) and retrospectively (through the provision of compensation for past harms and the distribution of losses). Thus, tort law has a number of disparate functions or purposes—typically identi fied under the broad headings of (corrective) justice, compensation, deterrence, and, less often, vindication, that is inquiry and/or publicity. 29 It is to these functions that we now turn our attention, through an analysis of the little-known, and unreported, case of Woodroffe Hedley v Cuthbertson [1997]. 30 In many ways, the decision in Woodroffe-Hedley is straight forward. The case itself is of limited legal significance and is unlikely to appear on your reading lists. 31 It is, nevertheless, an effective illustration of the diverse purposes and func tions of tort law and how the courts balance its—at times competing—objectives. courts really should take policy into account, it is clear that, at least on occasion, they do— where, unsurprisingly, we also see conflicting views as to its role. Compare the following: Public policy is ‘a very unruly horse, and once you get astride of it you never know where it will carry you’. (Burrough J, Richardson v Mellish (1824) at 252) With a good man [or presumably woman] in the saddle, the unruly horse can be kept in control. It can jump over obstacles. (Lord Denning MR, Enderby Town Football Club Ltd v The Football Association Ltd [1971] at 606)

Woodroffe-Hedley v Cuthbertson (20 June 1997 unreported) (QBD)

Gerry Hedley was an experienced rock climber. He hired David Cuthbertson, the defendant, an experienced alpine climber, to guide him to the summit of the Tour Ronde—a steep ice climb of about 350 metres up one of the peaks of the Mont Blanc Massif, a mountain range in Europe. At the time of the accident, Cuthbertson was leading (i.e. going first). Concerned about the heat of the sun on the snow and the danger of rock fall, he decided to protect Hedley on a single ice → PROPERTY OF OXFORD UNIVERSITY PRESS

29. For a consideration of the purposes of tort law—focusing on the tort of negligence—see Steve Hedley ‘Making Sense of Negligence’ (2016) 36 Legal Studies 491 and more generally James Goudkamp and John Murphy ‘The Failure of Universal Theories of Tort Law’ (2015) 21 Legal Theory 47. 30. In so doing, we are mindful of Weir’s warning that before ‘discussing the purpose of “tort”, it is surely desirable to become familiar with what the ragbag actually contains: otherwise we shall be like adolescents spending all night discussing the meaning of life before, perhaps instead of, experiencing it’ n15 ix. 31. See further Lord Dyson on Woodroffe-Hedley and the criticism his judgment garnered in the press in ‘Compensation Culture: Fact or Fantasy?’ Holdsworth Club Lecture, 15 March 2013 at [33]. Watch Lord Dyson deliver his lecture here: www.youtube.com/watch?v=rbDDHd6vZEI .

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screw belay in order to save time. Cuthbertson had no recollection of the accident; however, another climber on the mountain described how a large sheet of ice broke away from under his feet, dragging him down with it. The shock of the fall wrenched out the single ice screw and Hedley was also dragged down the mountain. The rope caught on a rocky outcrop and Hedley was killed instantly. Cuthbertson survived with a fractured knee. The question for the court was whether Cuthbertson had negligently caused Hedley’s death. The evidence was that had two ice screws and a running belay been used (as was good prac tice), Hedley would not have died. In response, Cuthbertson argued that given pressures of time it was reasonable to use a single screw. Dyson J disagreed. Cuthbertson, in deciding to dispense with a second screw and not to use a running belay, had fallen below the standard of

care expected of a reasonably competent and careful alpine guide. 32 The claimant (Hedley’s young son) was awarded £150,000 in damages.

1.3.1 Corrective justice The facts of the case paint a fairly bleak picture:

Mr Cuthbertson made a serious mistake with tragic consequences which will live in his mem ory for the rest of his life. I am sure that he had Mr Hedley’s best interests in mind when he made that fateful decision to move across the rocks, without taking the elementary and fundamental precaution of making the belay safe for Mr Hedley by driving in a second screw. Objectively viewed, this was not a situation of emergency. Mr Cuthbertson had time to reflect. He reached a decision which, even without the benefit of hindsight, could not reasonably be justified. (Dyson J) In short, the accident was Cuthbertson’s fault; he was to blame for causing the accident and therefore, the argument goes, he should pay. 33 The argument here is one of justice, specifically corrective justice. 34 Justice requires that we do not unreasonably interfere with others—their person and their property—when we go about our daily lives. So if we were to ask why we should not go around punching each other or destroying one another’s property, the (or, at least, an) answer is that this is simply morally wrong. It is a requirement of justice that we do not treat each other in this way. Similarly, if I do punch you or destroy your property, justice requires me to do something about this—to correct or make good your loss. This latter demand of justice is what is under stood by corrective justice, and (as typically formulated) is built on two key elements— fault and causation . A defendant is liable to make good a claimant’s losses because they (a) factu ally caused the claimant to suffer those losses and (b) were to blame (at fault) in so acting. By contrast, where the defendant either did not cause the claimant’s losses or was not at fault in PROPERTY OF OXFORD UNIVERSITY PRESS

32. See Chapter 8 .

33. In contrast, the professional standards committee of the British Mountain Guides found that David Cuthbertson was ‘not at fault’. The climbing community has never accepted the legal decision in this case (Stephen Goodwin ‘Climbers “acquit” colleague’ The Independent 2 October 1997). 34. See Ernest Weinrib The Idea of Private Law (Harvard University Press 1995) which is generally seen as setting out the ‘purest’ account of corrective justice.

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causing them, as a matter of justice we have no particular reason to require the defendant to make reparation. In the first case, the defendant can say ‘it was nothing to do with me!’; in the second their defence is ‘I couldn’t help it!’ As such, corrective justice seems to provide a fairly good account of the typical tort claim. For the most part, defendants are liable in the law of tort only where they caused the claimant’s loss and (though there are more exceptions here) where they were at fault in so doing. This, then, is what looks to be happening in Woodroffe-Hedley . However, even on the comparatively simple facts of this case, the application of corrective justice may not be quite so clear. Corrective justice rests on a notion of individual responsibility: if I am responsible for harming you, then justice requires me to put things right. However, in Woodroffe-Hedley , it was not only Cuthbertson who was in some way responsible for what happened. Hedley also played a role. After all, as Dyson J acknowledged, ‘mountain climbing is extremely danger ous. That is one of the reasons why so many risk their lives every year on mountains’. Hedley, as an experienced climber, knew this and willingly took the risk. So even if we treat the role of a tort claim as being to determine who, if anyone, was (mor ally) responsible for the claimant’s injuries, there may be no clear or single answer. To put the point another way, a case like Woodroffe-Hedley seems to present the court with a choice between the justice of righting a wrong (assuming this can be established) and avoiding the (possible) injustice of making someone else pay for another’s self-chosen risk. 35 The court, in this case, through the mechanisms of negligence, allocated the loss to Cuthbertson. However, had the court found the situation to be an emergency, it may well have been the case that the court would have found his actions to be reasonable and the loss would have stayed where it fell, that is with the claimant. 1.3.2 Compensation In Woodroffe-Hedley , as in the majority of tort cases, corrective justice is achieved by requir ing the defendant to compensate (pay damages to) the claimant for the losses they have caused them. This may make it appear that corrective justice and compensation are effec tively synonymous—to say that tort law is concerned with corrective justice is to say that it is about compensating harms. But this is not quite right. While corrective justice often requires the payment of compensation, as we have seen, it does so only where the defendant is morally and legally responsible for the claimant’s losses. This (typically) requires both causation and fault. As such, corrective justice requires the payment of compensation only where the defendant culpably caused the claimant’s losses. Moreover, corrective justice is actually done only where it is the defendant who pays that compensation—otherwise it will not be the defendant who is making good the loss they have wrongfully caused—and that this money goes to the claimant —since otherwise it will not be the claimant who is then ‘made good’. 36 This seems to impose significant limits on the role of 35. As we shall see, the law has various mechanisms for splitting losses in cases where the claimant shares culpability (contributory negligence) or even preventing recovery completely (voluntarily assuming the risk/ consent) (discussed in Chapter 10 ). 36. Indeed, Patrick Atiyah has argued that tort law no longer operates as a system of personal responsibility or corrective justice as the actual tortfeasor never pays (‘Personal Injuries in the 21st Century: Thinking the Unthinkable’ in Peter Birks (ed) Wrongs and Remedies in the 21st Century (OUP 1996)).

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CHAPTER 1 Introduction

tort law as a means for compensating losses. If tort law is simply about ‘doing’ corrective justice, then it can do nothing to remedy accidents and to make good losses which are no one’s fault or where the party who is at fault cannot themselves pay compensation. Look again at Woodroffe-Hedley . The claimant was not the climber’s estate but his young son, who was not even born at the time of the accident. It is not impossible to say that, by not using a second ice screw or a running belay, Cuthbertson was wronging Hedley’s unborn son (as well as wronging Hedley himself), but nor is this self-evident. Even here, whether the claim can really be said to have given effect to corrective justice is far from clear. Moreover, the extent to which tort law is really concerned with corrective justice can be challenged when we look at the motives of those who bring tort claims. In newspaper inter views at the time of the case, Hedley’s widow was quoted as saying she felt deeply sorry for Cuthbertson. 37 It was clear that she was looking to allocate blame only insofar as was neces sary to gain compensation for her son. Moreover, any compensation that Cuthbertson would be required to pay would be covered by his liability insurance. As such, it would not be Cuthbertson who was paying, but his insurance company. Thus, while on the surface tort law works to make the blameworthy pay, its corrective justice purposes are in truth undercut by the reality of insurance. Indeed, claiming in tort is often, in practice, conditional on the defendant having insur ance. After all, there is little point suing someone who will not in the end be able to pay: . . . it is seldom worth suing an uninsured negligent defendant. 38 Because of the operation of insurance, the plaintiff’s loss is distributed, not to the careless defendant but, through insurance premiums, to all those who were not careless but who had insured against the possibility of being so. By the back door, the presence of insurance goes some way to the destruction of the central fault principle itself. 39 Lord Sumption made a similar point in a speech to the Personal Injuries Bar Association in 2017. A system which makes compensation dependent on fault makes little sense if the damages are being paid not by the persons at fault, but by society as a whole. One is entitled to ask: why should the private law distribution of rights and liabilities between individuals or their employ ers determine the incidence of what is in reality a social cost? . . . [I]f the cost of compensating people for personal injury falls on society at large, there is no rational reason to distinguish between personal injury which has been caused by someone’s fault, and personal injury which has occurred without fault. 40 Lord Sumption’s provocative speech is worth reading in full as he explores many of the issues raised in this chapter and throughout the book. We’ll be returning to it a number of times during this chapter. 37. Gary Younge ‘Go tell it on the mountain’ The Guardian 21 June 1997. 38. Though the case of the so-called ‘lottery rapist’ ( A v Hoare [2008] ) may be an exception (David Batty ‘Victim wins right to sue Lotto rapist’ The Guardian 30 January 2008; Jeremy Armstrong, Lucy Thornton and Sophie Halle-Richards ‘Rapist wins control of £7million lotto jackpot—after 15 year fight’ Manchester Evening News 15 April 2023). 39. Conaghan and Mansell n26 12. 40. Lord Sumption ‘Abolishing Personal Injuries Law—A Project’ Personal Injuries Bar Association Annual Lecture, London, 16 November 2017. See also Jonathan Morgan’s response: ‘Abolishing Personal Injuries Law? A Response to Lord Sumption’ [2018] Professional Negligence 122. PROPERTY OF OXFORD UNIVERSITY PRESS

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The disparate aims of tort law

In such circumstances, the principles of corrective justice give way to the practicality of distributing losses. And, more fundamentally, the loss- shifting credentials and justifications of tort law (moving losses onto those who have culpably caused others to suffer them) are undermined. Losses, rather than being moved from one individual to another, are instead spread over a larger number of people. Tort law, while retaining its rhetoric of individual responsibility, effectively forces people to contract into the collective responsibility strategies of the welfare state. 41

Counterpoint

Tort law, like all law, is political. By this we do not mean political in the party politics sense (although this may sometimes be relevant), but rather as ‘being characterised by policy’. 42 Put simply, tort law embodies a philosophical perspective which prioritises individual over social or collective responsibility. Consider, for example, the decision in Roe v Ministry of Health [1954], 43 the fact that there exists no general legal duty to rescue, 44 or Tomlinson v Congleton Borough Council [2003] . 45 The difficulty is that the politics of this understanding of tort law are rarely made explicit—they are, instead, presented as the way things are, as ‘common sense’. This understanding of tort law is not unproblematic: Joanne Conaghan and Wade Mansell argue that: if the basic subject matter of tort is concerned with how the law responds, or fails to respond, to the misfortunes which afflict individuals in our society, it can be strongly argued that the tort system represents a political solution which is undesirable both because of the arbitrariness of its results and because of the underlying callousness of its ideology. 46 This critique is, of course, itself political. It reflects a view that emphasises the importance of social or collective responsibility for an individual’s misfortune and which questions the effectiveness of the tort law system—and in particular the centrality of the fault principle—as a mechanism for compensation and/or loss distribution. 47 Who do you find most persuasive? Our purpose here, however, is not to argue for one understanding of tort law over another. Rather, it is simply to make clear from the outset that more goes on beneath the surface of tort law than might at first be apparent and, in so doing, to encourage you to approach your study of it with a critical eye. 41. Conaghan and Mansell n26 12. Most notably in relation to workplace and road traffic accidents where statutory requirements that employers and motorists have liability insurance have been described by Jonathan Morgan as a ‘ partial move towards a state-sanctioned compensation scheme’ (‘Tort, Insurance and Incoherence’ (2004) 67 Modern Law Review 384, 400). 42. Wade Mansell, Belinda Meteyard and Alan Thomson A Critical Introduction to Law (Cavendish 2004) 2. 43. Discussed in section 8.4.1 . 44. Discussed in section 4.2 . 45. Discussed in section 11.4.1 . 46. Joanne Conaghan and Wade Mansell ‘Tort Law’ in Ian Grigg-Spall and Paddy Ireland (eds) The Critical Lawyer’s Handbook (Pluto Press 1992) 83–90, 84. 47. Conaghan and Mansell n26 3–4.

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CHAPTER 1 Introduction

There is, however, as Lord Sumption noted in his speech to the Personal Injuries Bar Association, another difficulty with tort law as a mechanism for compensation. As we have seen, the idea of corrective justice which underlies tort law’s general requirements of causa tion and fault calls only for losses to be made good where they are the responsibility of someone else. While it might seem ‘fair’ that Hedley’s young son is in some way compen sated for the loss of his father, what about the many other children who lose a parent but have no one to blame for their death and, therefore, no one to sue in tort? Are they any less deserv ing of compensation? Similarly, would Hedley’s son have been any less in need of compensa tion if the court had found the guide not to be negligent—if they had found one ice screw, in the circumstances of the case, to be sufficient? The point here is not to question the requirements of corrective justice, but to ask whether the law of tort should put all its eggs in this one basket. Corrective justice provides one good reason for providing a claimant with compensation, but it does not follow that there are no other, equally good, reasons for compensating accident victims. Why should the law generally, and through the law of tort in particular, prioritise corrective justice? Should it not also provide compensation for those who suffer losses but who cannot find a defendant on which to pin them? Moreover, even where losses are caused by another’s culpable conduct—and hence where corrective justice would seem to apply—as we have seen, the loss will often be borne either by an insurer or will not be made good at all (because the defendant does not have the resources to pay). 48 In the end, cor rective justice actually seems to cover very little ground, protecting only a small minority of those whom we might feel should be compensated for their injuries.

Pause for reflection

Consider the following situations.

1. Erin, an affluent 80-year-old, crashes their car while drunk and loses a leg. 2. Argi, an 18-year-old single parent, loses a leg when, while working as a traffic warden, he is struck by an unidentified hit-and-run driver. 3. Mathilde, as a result of a congenital defect, is born with only one leg. She is now 5. 4. Léonie loses a leg as a result of contracting a serious disease. 5. Brontë, a ‘career burglar’, loses a leg after being shot by a householder during a break-in. Which of these people should receive compensation? Who or where should the compensation come from?

There is no ‘right’ answer to this exercise. Its purpose is simply to get you thinking about the variety of harms you will encounter in your study of tort law. Think about why you believe a person who loses a leg as the result of someone else’s fault is more or less deserving of compensation than someone who, say, loses a leg after contracting a serious disease—what assumptions about the comparative severity of these harms and, importantly, the purpose of tort law, underpin your decision? Keep these questions (and your responses to them) in mind as you continue reading this and the following chapters so that you can reassess your position as you learn more about tort law. PROPERTY OF OXFORD UNIVERSITY PRESS

48. Losses are also often borne by employers (or more accurately the employer’s insurance company) through the mechanism of vicarious liability, discussed in Chapter 20 .

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The disparate aims of tort law

As such Patrick Atiyah argues that the operation of tort law is largely arbitrary or—to use his words—a lottery. 49 Tort law’s effectiveness as a mechanism for compensation is limited by its allegiance to fault over need. In the absence of fault, tort victims are thrown back onto alter native sources of compensation and support: social security, insurance policies and other forms of compensation such as the Criminal Injuries Compensation Scheme or NHS Resolution. 50

A compensation culture?

There is much debate about the existence (and calls for eradication) of a so-called ‘compensa tion culture’, a culture that encourages us to ‘blame and claim’. 51 Certainly, a cursory glance at the news media provides any number of examples of its (supposed) effects. 52 As former Court of Appeal judge Stephen Sedley notes in his excellent review of the Secret Barrister’s book Fake Law: The Truth About Justice in an Age of Lies : The United Kingdom has in recent years been blighted by a compensation culture gener ated by health and safety legislation and human rights laws and promoted by well-paid legal aid lawyers and credulous judges. We know these to be facts because newspa pers and electronic media have exposed them fearlessly . . . The Sun and the Daily Mail needed individuals for their readers to hate or fear: scroungers who made piles of cash out of trivial or imaginary injuries, whingers who turned their self-regarding grievances into human rights claims, and legislators and lawyers who enabled and encouraged them to do it. These have become our folk-devils. 53 Sedley’s comments, though almost certainly ironic, are nonetheless arresting—not least because over the years judges have sought to distance themselves from suggestions of a →

49. Patrick Atiyah The Damages Lottery (Hart 1999). 50. Eduardo Reyes ‘Show us the money’ Law Society Gazette 7 May 2024.

51. See e.g. Stephen Sedley ‘Mischief Wrought’ London Review of Books 4 March 2021; Alan Saggerson ‘Something must be done: Recent Legislative Contributions to the Common Law’ Lecture at Lincoln’s Inn, 30 October 2018; Sumption n40 ; Lord Dyson ‘Magna Carta and the Compensation Culture’ The High Sheriff’s Law Lecture, 13 October 2015; Dyson n31 ; Richard Lewis ‘Compensation Culture Reviewed: Incentives to Claim and Damages Levels’ [2014] Journal of Personal Injury Law 209; James Hand ‘The Compensation Culture: Cliché or Cause for Concern?’ (2010) 37 Journal of Law and Society 569; Kevin Williams ‘State of Fear: Britain’s “Compensation Culture” Reviewed’ (2005) 25 Legal Studies 500. 52. See e.g. Annabel Denham ‘I spent a day in Britain’s employment tribunals . . . and found a barmy system that is about to get worse’ Daily Telegraph 4 July 2024; Charlotte Bateman ‘Child paid £5k compensation after climbing onto roof of school and falling through ceiling’ My London 6 November 2022; Anne Widdecombe ‘We must get a grip on the compensation culture menace’ Daily Express 3 March 2021; John O’Connell and Chris Keates ‘Has the compensation culture gone mad?’ Daily Express 30 March 2018; Hugh Morris, ‘Compensation culture is ruining Britain’s reputation abroad, tour operators warn’ Daily Telegraph 21 June 2017; Emma Munbodh ‘Attitudes to claiming: the “compensation culture”’ Mirror 10 February 2015; Claire Carter ‘Judge refuses whiplash damages as he criticises Britain’s “compensation culture”’ The Telegraph 26 March 2014; Jaya Navin ‘Ridiculous compensation culture claims and pay-outs burden on tourist attractions’ Daily Mail 26 April 2010; Sandra Laville and Sally James Gregory ‘How a puppy, a paving slab and a passing cyclist made a bad break worth thousands: no-win no-fee firms blamed for compensation culture that costs £10bn a year’ The Guardian 23 October 2004. 53. Sedley n51 . PROPERTY OF OXFORD UNIVERSITY PRESS