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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.