This introduction provides a general overview of the law on torts before turning to the more specific actions available. It is important to remember that tort law is not a unified area of law, protecting many different interests beyond just ensuring victims receive compensation for injuries (which remains a focus of tort law, see Livingstone v Rawyards Coal Co), such as financial interests, property rights alongside the protection of people’s reputation, privacy, and autonomy—all of which being demonstrated throughout later chapters. Indeed, the advent of human rights law (see the Human Rights Act 1998) has also impacted the development of tort law and its protected interests.

Despite purporting to protect a wide range of interests — and doing so to a large degree — tort law is inherently subject to practical limitations, which this introduction discusses. Such challenges include the potential inducement of a ‘compensation culture’ within the United Kingdom (see Tomlinson v Congleton Borough Council), the modern-day realities of insurance and the widespread effects it has on people’s liability and indeed the development of tort law principles themselves (see Nettleship v Weston). In light of these challenges and limitations, this introduction concludes by briefly traversing alternatives to the current tort law system.

This chapter explores a key control mechanism within the law of negligence — being, the duty of care (tracing back to the famous case of Donoghue v Stevenson). The duty of care can determine when negligent damage will attract compensation by identifying which property, people and ultimately interests the defendant would potentially be responsible for — with different tests (Caparo Industries v Dickman), or lack thereof (Robinson v Chief Constable of West Yorkshire Police), being employed to do so.

A unique aspect of negligence is the lack of intentionality, creating a need to limit defendant’s liability as nobody knows when they may be subject to a claim for negligence. It also raises a moral distinction between negligence and intentional torts, as, intuitively, it is more readily acceptable that people ought to bear the consequences for their deliberately caused harms (see Sutradhar v National Environmental Research Council) — notwithstanding instances of people deliberately choosing to act negligently.

This chapter discusses the tort law response to pure economic loss — loss caused by the defendant without any physical damage present (which would be consequent economic loss; see Spartan Steel & Alloys v Martin & Co for the difference). Pure economic loss engages heightened concerns of indeterminate liability, as the damage isn’t tied to any physical nexus, e.g., if there are lost profits due to an advisor’s negligent financial advice (see Hedley Byrne v Heller). Due to this concern, the courts often require the defendant to have engaged in an ‘assumption of responsibility’ regarding the claimant’s damage, which this chapter will explore in-depth, finding the court will often require that the facts establish a particular relationship between the parties.

Pure economic loss also engages an interesting overlap with contract law, as it is often argued that parties ought to protect against pure economic loss through contractual arrangements — requiring the court to balance and define the respective realms of tort and contract law (see Henderson v Merrett Syndicates), a dilemma this chapter explores in detail.

Psychiatric injury (as famously defined in McLoughlin v O’Brian), or ‘nervous shock’ as it is commonly referred to, is a developing area of tort law slowly expanding with society’s more modern understanding of social and medical treatments. However, akin to the economic torts, the court is mindful of heightened indeterminate liability concerns, demarcating between injuries to the body and those to the mind when it comes to the defendant’s duty of care — with the court articulating several factors that make psychiatric injury distinct (see White v Chief Constable of South Yorkshire Police).

The tort notably expanded following the Hillsborough disaster and the many psychiatric injury claimants it produced, resulting in the courts attempting to classify psychiatric injury victims with varying ramifications. This chapter explores these categories, alongside the criteria claimants must meet for each (see Alcock v Chief Constable of South Yorkshire), before inviting a more nuanced evaluation of this area of law in light of fairness, the need to provide limits on recovery and the many other policy considerations psychiatric injury inherently engages.

This chapter covers another element of the negligence analysis, being whether a defendant breached the duty of care they owed. By its nature, students must have established whether a duty was owed prior to this analysis, and students would do well to keep the two steps separate.

To have breached their duty, the defendant must have fallen below the relevant legal standard. These standard changes depend on the context, with this chapter covering each adaption in turn. Generally, the standard is that of a reasonable person had they been in the defendant’s position (see, Bolton v Stone). However, if the defendant was acting in a capacity which requires specialised professional knowledge and judgment, the standard adapts to the reasonable person with such knowledge and judgment (Wilsher v Essex Area Health Authority).

The use of ‘reasonable’ invites an objective test, such that a particular defendant’s lack of knowledge or inexperience will not affect the legal standard they need to meet. This objectivity, while seemingly harsh, is underpinned by the fact that those seeking professional advice/help would expect those acting within that capacity to exercise reasonable skill and care within that profession, not one that varies depending on the particular professional’s capabilities. The harms of a variable standard are cognisable within the context of being a road-user, as if a collision occurred the claimant’s recovery should not be contingent on whether the driver was newly qualified or less capable (see, Nettleship v Weston).

This chapter explores the former of the twin parts of ‘causation’ in the law of tort, causation and remoteness, with causation referring to the cause of damage in fact and remoteness concerning the cause of damage in law. These terms are common to multiple areas of law, including both contract and criminal law. The case law surrounding causation is difficult and often confusing to navigate — with establishing what it means to cause harm within the legal sense often being regarded as the most difficult element of the negligence inquiry.

This chapter will equip students to simplify this element by separating the case law into categories, which different fact scenarios may slot into, guiding students as to when each category applies. An example is offered by the distinction between material contributions to ‘risk’ (see, Fairchild v Glenhaven Funeral Services Ltd) and material contributions to ‘injury’ (see, Bonnington Castings Ltd v Wardlaw). The chapter also traverses many additional categories, including harm in the form of ‘lost’ chances (a particularly contentious academic and judicial part of the law, see Gregg v Scott) and issues of overdetermination with failure to warn scenarios (Chester v Afshar), the latter two offering potential challenges to causation, notwithstanding a general lack of case law addressing these issues.

This chapter explores the subsequent element of determining whether, legally, the defendant’s tortious wrong ‘caused’ the claimant’s injury. Remoteness serves as a necessary limit on the casual inquiry, as historical involvement in causing the damage alone is far too inclusive for liability (a heightened concern when discussing economic loss, see Corr v IBC Vehicles Ltd), especially regarding the duty of care, which lacks the necessary decision to cause harm evident within the intentional torts. Therefore, the law is particularly sensitive to not overburdening defendants while ensuring adequate compensation for plaintiffs is reached. This chapter will traverse tort law’s use of remoteness as a mechanism to find this balance — deeming some damages too remote from the defendant’s tortious wrong, or ‘breach’, such that the defendant will not be liable for these harms (with whether such harms were ‘reasonably’ foreseeable by the defendant being particularly important, see Hughes v Lord Advocate).

This chapter traverse’s occupier’s liability, which is a statutory form of negligence derived from the Occupiers’ Liability Act (the OLA 1957) and the Occupiers’ Liability Act (the OLA 1984). These are positive duties which engage liability when claimants are injured by the state of an occupier’s premises.

Occupiers’ liability, as a theoretical exercise, is relatively straightforward, being a self-contained area of law with minimal conceptual complexity — favouring a systematic application of the relevant statutes and case law. However, it also has its practical relevance to many people's own lives, inviting potential liability for anybody who controls premises if those present are injured.

This chapter will equip students to identify which facts engage either the OLA 1957 or 1984 Act’s specifically and which duties need to be observed. However, generally, the Act’s will be engaged where an occupier retains control of a premises — being able to influence their premises state and the corresponding impact they have on the individuals present (see, Wheat v Lacon). Due to the wide range of places and occupiers this covers, the law does not require a duty to keep the people present reasonably safe nor the premises themselves (see, Portsmouth Youth Activities Committee v Poppleton) — the latter especially as many locations simply cannot be made ‘safe’. A heightened concern, given the law considers ‘premises’ to be a broad term, which extends beyond just land to any ‘fixed or moveable structure’.

This chapter traverses the three ways claimants can recover from defective product damages, being contract (and the implied terms regarding quality, see Sale of Goods Act 1979), the Consumer Protections Act 1987 (CPA) with its strict liability protections, and the already studied common law negligence — as Donoghue v Stevenson was after all a product liability case.

This chapter helps students spot and apply these different approaches, which can overlap. Helpfully, it will help students understand the remedial consequences of each type of claim, which will enable them to assess what option is best suited for the claimant. This is useful as the different causes of actions do not necessarily act as alternatives to one another, and you may wish to pursue a statutory CPA action alongside the tort of Negligence in case, for example, the court accepts a breach of duty occurred, but there was no ‘defect’ in the product as required under the statue (see section 3 of the Consumer Protections Act 1987).

Therefore, students will find Product Liability to be distinguishable from our studies of Occupier’s Liability in that the statutory scheme do not replace the common law actions, though the statutory scheme, under the CPA, does offer many formal advantages like strict liability. That said, as students will discover, how these statutory schemes have been implemented may not make these advantages realisable (see, O’Byrne v Aventis Pasteur MSD Ltd).

This chapter traverses torts that are concerned with protecting people's legal interests in land — the tort of Nuisance and its subset, Rylands v Fletcher. This chapter walks through in more detail the different rules, requirements, and results that come with land-focused torts (see, Hunter v Canary Wharf Ltd), which are inherently different from those we became familiar with under negligence. Notably, the torts differ greatly when it comes to the likes of remedies, as negligence invites compensation for harm done. In contrast, Nuisance’s focus lay in seeking an injunction to stop the activity so people’s interest in the land can cease being interfered with (though later compensation is awardable, either in addition or in the alternative, depending on the facts, see Coventry v Lawrence).

This chapter also covers the tort of public Nuisance (which is confusingly named as it is not technically a tort) to contrast with private Nuisance. Before covering the role the tort of trespass plays in protecting these land-based interests and, finally, exploring the famous Rylands v Fletcher action and what facts engage it — often requiring isolated incidences of ultra-hazardous uses of land ‘escaping’ (see, Rylands v Fletcher).

This chapter traverses the economic torts. As students will quickly find, these torts appear to lack an overarching coherent theme, offering considerable conceptual difficulties. Furthermore, unlike some of the other torts-protected interests, the values being protected by economic torts appear to be viewed as a lesser priority when it comes to claiming law protection. This chapter helps students understand this area of law via an understanding of the landmark case of OBG v Allan, which clarified and brought structure to what was previously heavily disjointed law.

This chapter will show students how tort law facilitates compensation for the intentional infliction of economic loss through economic torts. Some students will notice that within market-based economies, incentives often seem to encourage the infliction of such losses, as the continued promotion of coemption leads commercial parties to gain market share by depriving others of customers. The desirability of avoiding monopolies means such actions, most of the time, are not subject to economic torts (see, Total Network SL v Customs & Excise Commissioners), but it does beg the question of when healthy and legitimate competition yields to the wrongful infliction of loss. The answer is covered within this chapter, indeed being the focus of the economic torts.

This chapter shifts away from negligence-focused torts and traverses intentional torts. As students may expect, these torts, while varied, are centred around the core requirement of the defendant’s actions having been intentional as opposed to the product of general carelessness (see, Letang v Cooper). These varied torts range from protecting against long-standing legal interests to meeting novel contemporary problems, an evolution the current #MeToo movement illustrates.

Students will be introduced to six intentional torts, categorised into those which squarely protect aslant ‘trespasses’ to the person: assault, battery, and false imprisonment (see, respectively, Stephens v Myers, R v Ireland, and R v Bournewood Community and Mental Health NHS Trust, ex parte L), alongside those considered sui generis or related in nature, being the tort in Wilkinson v Downton, the Protection from Harassment Act 1997 and malicious prosecution (see, Martin v Watson).

As students will learn, at the core of these torts is the need to protect individuals’ autonomy and integrity — as illustrated by the various requirements of the torts — however, many other interests are protected by the different torts, retaining their own purposes, and elements and importantly remedies for different wrongs.

This chapter traverses the law of defamation, a tort which recognises the value of and serves to compensate and preserve infringements on people's reputations or goodwill — be they natural persons or certain corporations.

There are two key categories of defamation, libel and slander (the former concerning permanent false publications, see, and the latter regarding transient publications, i.e. oral statements). However, whilst historically significant, the line between and importance of the distinction has been greatly altered by modern legislation (see, the Defamation Act 2013).

Students will learn the core requirements of a successful defamation action, being a defamatory statement referring to the claimant being published to a third party (see, Lachaux v Independent Print Ltd). However, they will also see the many defences available for an otherwise successful defamation action (see, for example, the defence of honest opinion London Artists Ltd v Littler) and, indeed, the remedies that flow from a successful action — usually compensation or an injunction. Legislation has also greatly altered how defamation trials are conducted as, while rare today, historically, jury trials were often employed to determine whether defamation was made out.

As students will see, defamation law faces many contemporary challenges, from how the Internet and social media facilitate the sharing of false information to posing questions about content hosts' liability (e.g. Facebook) when it comes to others sharing defamatory material on their products (see, Tamiz v Google). Defamation has long been a difficult area of tort law responding to many different challenges, which students will see reflected in the considerable changes within this area of law, evidenced in the multiple defamation regimes introduced (see, the Defamation Act 1996, Defamation Act 2013, and the impacts of the European Convention on Human Rights).

This chapter traverses privacy rights, which aim to protect people from the harm inherent in their true, yet sensitive, facts being published (compared with defamation, which protects against untrue publication).

The right to privacy is elusive in definition, but students will become familiar with a common articulation, being the ‘right to determine for oneself how and to what extent information about oneself is communicated to others’ (see, the Younger Report). Whilst the UK is yet to recognise a ‘tort of privacy’ (see, Wainwright v Home Office), such rights benefit from a patchwork of protections, primarily across the equitable breach of confidence action and the tort of misuse of private information — the former protecting confidential information and the latter protecting private information. However, as students will learn, any other sources protect privacy rights, such as the common law (see, Fearn and others v Board of Trustees of the Tate Gallery), statute (see article eight, schedule one, of the Human Rights Act 1998) and government regulations. Students will come to recognise the inherent tensions between freedom of speech and the right to privacy and how the law responds to it, perhaps imperfectly so (see, Venables & Thompson v News Group Newspapers Ltd).

The chapter then shows students how to navigate the breach of confidence actions various requirements, namely how to identify if there was a reasonable expectation of privacy, and then, if so, whether an unauthorised use of that information occurred by the defendant (see, Campbell v MGN Ltd), and how the latter element specifically deals with the aforementioned freedom of expression tension.

Students will then be invited to critically examine this area of the law, which is inherently complex and complicated. This is an important exercise given the potential need for further privacy protections, considering the relevant principles are far from settled. Furthermore, if students consider further protections are needed, they will need to consider and argue whether the common law or statute should provide them.

This chapter travers’s vicarious liability — an interesting area of tort law that imposes liability on individuals for the torts committed by another. Holding people responsible for others’ actions is inherently problematic, attracting a rich body of literature to justify the extension of the law. It is for this reason that, generally, the doctrine operates within employment situations (see, Ready Mixed Concrete v Minister of Pensions and National Insurance); however, it has expanded recently to broadly analogous relationships that are not technically contractual employment situations (see, Catholic Child Welfare Society v Various Claimants and Barclays Bank Plc v Various Claimants). Students will be equipped with arguments within the contentious policy debates and the key cases surrounding vicarious liability in order to discover their own position on the matter. This is a practically valuable exercise, given that essay questions are common in assessing this area of law.

Students will also be introduced to non-delegable duties, which can be similarly breached by third party’s actions (see, Woodland v Essex City Council); however, it is worth noting these duties are still a case of primary liability, as opposed to vicarious liability, which concerns secondary liability. The fact that liability occurs through third parties’ actions connects the topics, making it convenient to deal with the matter within this chapter.

This chapter traverses an essential area of tort law: defences. Defences are engaged when the elements of a tort have been made out and are unique in being pleased by the defendant, who now bears the burden of proof of showing how they are made out. 

Students will note several other specific defences that have been discussed regarding different actions already; the three defences within this chapter are more general, applying to almost all tortious actions. Students would do well to apply the aforementioned tort-specific defences before engaging these more general torts — contributory negligence, volenti non fit injuria (volenti), and illegality. Though it is important to remember, there are many more defences beyond this text, with Goud Kamp discussing 38 different defences in his book Tort Law Defences, an important, albeit not one covered in this text, being the Limitation Act 1980, which imposes strict time limits on commencing an action, less the courts reject the claim (with a few discretionary exceptions available).

This chapter will enable students to identify where the following defences apply in turn before considering the background of, basis for, and elements of these defences:

Contributory negligence is unique in that, following the Law Reform (Contributory Negligence) Act 1945, it reduces rather than prevents liability — lowering the compensation payable by the defendant to the extent the claimant’s actions ‘contributed’ to the harm (See, Commissioner of Metropolitan Police v Reeves and St George v Home Office).

Volenti non fit injuria (volenti) is a complete defence, absolving the defendant of all liability where the claimant had ‘consented’ to the tortious action, requiring both free and voluntary agreement to the risk alongside knowledge of the risk’s full nature and extent (see, Smith v Baker). This is notably a rare defence in modern times, as it rarely succeeds. 

Finally, illegality, which is similarly a complete defence though one that is grounded in public policy rationales (see, Gray v Thames Trains Ltd). This defence prevents claimants from bringing an action when it is based on their own illegal acts, engaging a range of contentious approaches’ to, and rationales’ of, illegality within the case law — as students will discover with a recent Supreme Court approach (see, Patel v Mirza), with the ramifications of the decision being yet to be seen.

This chapter traverses the finale of a successful tort, being the extent of recovery available to the wronged party. Therefore, the claimant must have first proved the elements of one of the aforementioned torts, and the defendant must have failed to prove any relevant defence applied before remedies are engaged.

This chapter primarily focuses on damages, being the primary remedy for most tort actions; however, students ought to remember there are other remedies available, such as an injunction or potentially specific performance (i.e. which forces a defendant to perform specific actions), being particularly relevant for trespass to land, the Protection from Harassment Act 1997, defamation, and privacy.

Students will learn the relevant aspects of damages, beginning with the purposes of damages (see, Whittington Hospital NHS Trust v XX) and how they are realised in the different central principles associated with compensating property damage, such as the cost of cure versus diminution of value approaches (see, Dodd Properties v Canterbury City Council). Students will soon come to see the much more difficult area of compensating for personal injuries — being guided through how the court approaches both pecuniary (see, Hunt v Severs) and non-pecuniary losses (see, Heil v Rankin). An area of law which is of heightened complexity when considering how the courts’ should account for the benefits and generosity people receive after such injuries. Students ought to remember damages are inherently linked with complex civil procedure rules, much of the details of which are beyond this chapter. Furthermore, the mechanical calculation of damages, beyond general principles, will not be traversed, as this is generally unnecessary and beyond the scope of this chapter.

The chapter also covers the relevant legislation that impacts the award of damages, including the Limitation Act 1980, the Fatal Accidents Act 1976, and the Law Reform (Miscellaneous Provisions) Act 1934. It will also consider the various forms compensatory damages can take, be it provisional damages, interim awards and periodical payment orders, alongside when multiple parties are held liable.