9780198925231-Ch1

5

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).

PROPERTY OF OXFORD UNIVERSITY PRESS