9780198925231-Ch1

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CHAPTER 1 Introduction

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.