359

Part  1 Introduction

I.  Ownership and shifting of risk

10O.W. Holmes, The Common Law ( 1881, republished 1991 ) 94.

11White v. Jones [ 1995 ] 2 AC 205, 236 per Steyn LJ ( CA ). See also Stovin v. Wise [ 1996 ] AC 923, 933 per Lord Nicholls ( » Leaving the loss to lie where it falls is not always an acceptable outcome « ) and, in the context of ship collisions, Cayzer, Irvine & Co. ( Owners of the Steamship » Clan Sinclair « ) v. Carron Co. ( Owners of the Steamship » Margaret « ) ( 1884 ) 9 Law Reports, Appeal Cases ( Second Series ) ( App Cas ) 873, 881 per Lord Blackburn.

5 / 10 Broadly the same notion is encapsulated in a Latin phrase that does have broad currency in the common law world: damnum absque iniuria12. This expresses the idea that not all damage constitutes an injury for which the law will hold another person accountable. See further no 5 / 117 ff below.

5 / 11 Needless to say, English lawyers are also familiar with the » land of milk and honey « delusions that Koziol bemoans in his opening pages13. Thus, one senior judge expressly criticised the tendency to assume » that for every mischance in an accident-prone world someone solvent must be liable in damages «14. And, in similar vein, the courts have been urged » not [ to ] contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy «15. In judicial dicta and the general public discourse there has been considerable emphasis on the adverse effects for society of what is popularly derided as a » compensation culture «. Encapsulating such concerns, it has been said that » [ t ]he fear is that, instead of learning to cope with the inevitable irritations and misfortunes of life, people will look to others to compensate them for all their woes, and those others will then become unduly defensive or protective «16. At the same time, anxiety has been expressed at the restrictions on personal autonomy that result from the over-extension of tort law, not just but also for potential victims, whose choices of action may be limited if those facing the threat of liability respond in a detrimentally defensive fashion.

5 / 12 These various concerns have produced substantial legislative reform of tort law in Australia17, inspired by the tort reform movement in the USA, as well as a rather cosmetic statutory reform in the UK18. The need for such reforms has attracted general academic scepticism19, though not because academics believe that

12See eg Halsbury’s Laws of England, vol 97, Tort, § 412 ff ( K. Oliphant ).

13Basic Questions I, no 1 / 2.

14CBS Songs Ltd. v. Amstrad Consumer Electronics plc [ 1988 ] AC 1013, 1059 per Lord Templeman.

15Gorringe v. Calderdale Metropolitan Borough Council [ 2004 ] 1 Weekly Law Reports ( WLR ) 1057 at [ 2 ] per Lord Stein.

16Majrowski v. Guy’s and St Thomas’s NHS Trust [ 2007 ] 1 AC 224 at [ 69 ], per Baroness Hale.

17Following the » Ipp Report « of 2002: Review of the Law of Negligence: Final Report, 2002, <www. revofneg.treasury.gov.au / content / Report2 / PDF / Law_Neg_Final.pdf>.

18Compensation Act 2006. Reforms of the funding regime for civil litigation that came into effect in April 2013 are attributable to the same concerns but are likely to have a greater impact.

19In the UK: see K. Williams, State of Fear: Britain’s » Compensation Culture « Reviewed ( 2005 ) 25 Legal Studies ( LS ) 499; R. Lewis / A. Morris / K. Oliphant, Tort Personal Injury Claims Statistics: Is There a Compensation Culture in the United Kingdom ? ( 2006 ) 14 TLJ 158; A. Morris, Spiralling or Stabilising ? The Compensation Culture and Our Propensity to Claim Damages for Personal Injury ( 2007 ) 70 Modern Law Review ( MLR ) 349; see generally Better Regulation Task Force, Better Routes to Redress ( 2004 ). In Australia: see E.W. Wright, National Trends in Personal Injury Litigation: Before and After » Ipp « ( 2006 ) 14 TLJ 233; D. Ipp JA, Themes in the Law of Tort ( 2007 ) 81 Australian Law Journal ( ALJ ) 609; J.F. Keeler, Personal Responsibility and the Reforms Recommended by the Ipp Report: » Time Future Contained

the law should compensate for every loss that is suffered; rather, there is a widelyshared perception that the public hostility directed towards the tort system can result in reforms that deform fundamental principles of justice and prevent the payment of compensation to injured persons even where there are good reasons for holding another person liable for it.

II.  Tort law’s place in the overall system

More fundamentally, there has long been scepticism that tort law is able to meet 5 / 13 the various demands that modern society places on it, and this has led to the introduction of various alternative mechanisms in an effort to address societal

needs better, sometimes curtailing remedies that would otherwise be available under the law of tort20.

A.Workers’ compensation21

No-fault workers’ compensation was introduced in Britain by the Workmen’s 5 / 14 Compensation Act 1897, and the example was soon followed in New Zealand and

South Australia ( 1900 ), with other Australian states and territories following afterwards. The first Canadian province to introduce workers’ compensation was Ontario in 1915, and all the major provinces had it by 1931. The relationship of the new schemes with existing private law remedies took different forms. In the United Kingdom, the Workmen’s Compensation Act placed no limits on the worker’s right to litigate in tort. It was still possible to sue the employer for a work-re- lated injury and recover damages in the law of tort. By contrast, tort claims against the employer were abolished in Australia in some states, retained with restricted access in others, and retained with unlimited access in a final group of states. Restrictions on the right to sue in tort have taken various forms, including caps on the damages recoverable and minimum thresholds, expressed either in financial or percentage-disability terms, with the restrictions applying either to the whole claim or specifically to economic or non-economic losses. Depending on time and

in Time Past « ( 2006 ) 14 TLJ 48; B. McDonald, The Impact of the Civil Liability Legislation on Fundamental Policies and Principles on the Common Law of Negligence ( 2006 ) 14 TLJ 268.

20For an overview, see K. Oliphant, Landmarks of No-Fault in the Common Law, in: W. van Boom / M. Faure ( eds ), Shifts in Compensation between Private and Public Systems ( 2007 ).

21Oliphant in: van Boom / Faure, Shifts in Compensation no 5 ff; R. Lewis, Employers’ Liability and Workers’ Compensation: England and Wales, in: K. Oliphant / G. Wagner ( eds ), Employers’ Liability and Workers’ Compensation ( 2012 ).

place, the injured person might be required to make an irrevocable election to pursue one claim rather than the other, with a decision to sue in tort entailing the loss of workers’ compensation rights, or could be allowed to pursue both concurrently until the actual award of damages in tort.

5 / 15 Workers’ compensation no longer maintains a distinct institutional identity in Britain or New Zealand – in contrast with Australia and Canada. In Britain, workers’ compensation was subsumed within general social welfare provision in the immediate post-war years, becoming the Industrial Injuries Scheme ( IIS )22. IIS is very much a watered-down form of workers’ compensation, with benefits paid at fixed rates rather than related to actual pre-accident earnings. By 1990 ( when the link with pre-accident earnings was broken ) IIS had been substantially integrated into the ordinary social security system, though the benefits paid are distinct from those paid in respect of non-work-related ill-health.

5 / 16 In New Zealand, workers’ compensation was superseded by the comprehensive Accident Compensation Scheme that was established in 1974. See no 5 / 22 ff below.

B.Social welfare provision

5 / 17 The British social welfare system was introduced in the years following the Second World War. It offers a variety of forms of social security – including sick pay, incapacity benefit and unemployment benefit – as well as free access to the National Health Service ( NHS ) for all. Initially, there was only incomplete deduction of the value of social security benefits from tort damages recovered in respect of the same injury, meaning that there was an element of double compensation in the sums received by the claimant, but since 1989 a statutory recoupment regime has applied, allowing the State to » claw back « the value of social security benefits paid in respect of the same injury. This operates by way of a deduction from the damages paid to the claimant rather than as an independent recourse action against the defendant23. The deduction is made only from heads of damage corresponding to the loss compensated by the social security benefit, which means that damages for pain and suffering – for which there is no corresponding social security benefit – are effectively ring-fenced. For a long time, there was only very limited provision for the recoupment of NHS costs in treating the injured person, but from 2007 the statutory recoupment scheme was extended to allow the Depart-

22National Insurance ( Industrial Injuries ) Act 1946. See generally R. Lewis, Compensation for Industrial Injury: A Guide to the Revised Scheme of Benefits for Work Accidents and Diseases ( 1987 ).

23See now Social Security ( Recovery of Benefits ) Act 1997.

ment of Health to recover the relevant NHS charges ( including the charge for the provision of ambulance services )24.

Some scholars believe that the social security system constitutes a better basis 5 / 18 for the compensation of personal injuries than tort law, and recommend that the

tort claims should be curtailed to allow exclusive reliance on social security25, but the value of social security benefits are much too low at present to allow one to conclude that this would be an adequate trade-off, and there is no public enthusiasm for the tax rises that would be necessary to support higher levels of benefit.

the social problem of accidental injury, the focus of reform efforts shifted to the introduction of insurance-based no-fault compensation schemes in particular areas. In the UK, the main example is criminal injuries compensation, which was first introduced in 196426. Until 2001, awards were assessed in accordance with the rules of assessment for common law damages, but since then there has been a statutory » tariff « of 25 different levels of compensation, the maximum tariff payable being £ 250,000. Loss of earnings ( beyond the first 28 weeks ) and » special expenses « may also be compensated under the scheme; until 2012, the rules for calculating these awards are similar to though less generous than those at common law, but since 2012 loss of earnings has been compensated on a flat-rate basis at a level equivalent to social security benefit ( statutory sick pay ). The maximum total amount payable in respect of a single injury is £ 500,00027. Though it has been suggested that the creation of a State fund was justified on grounds of the State’s responsibility for failing to protect its citizens against crime, combined with its curtailment of individual rights of self-protection, these arguments were labelled » fallacious and dangerous « by the working party whose report paved the way for the scheme’s introduction28. Its justification for the reform was simply sympathy for the victim, coupled with recognition of the inadequacy of benefits provided by the social security system.

24Health and Social Care ( Community Health and Standards ) Act 2003; Health and Social Care ( Community Health and Standards ) Act 2003 ( Commencement ) ( No 11 ) Order 2006.

25See eg J. Smillie, The Future of Negligence ( 2007 ) 15 TLJ 300.

26Criminal injuries compensation was introduced in New Zealand in 1964, slightly ahead of the United Kingdom, and subsequently in Australia and Canada.

27See Ministry of Justice, The Criminal Injuries Compensation Scheme 2012 ( 2012 ).

28Home Office Working Party on Compensation for Victims of Crimes of Violence, Compensation for Victims of Crimes of Violence, Report, Cmnd 1406 ( 1961 ); and see generally Oliphant in: van Boom / Faure, Shifts in Compensation no 36 ff.

5 / 20 It has also been proposed that the UK should create a special no-fault compensation scheme for personal injuries caused by road traffic accidents, but no legislation with that effect has been forthcoming. In Canada, by contrast, the first no-fault automobile accident scheme was introduced in Saskatchewan in 1946, followed some time later in certain other provinces29. Some Australian states have also introduced auto no-fault30.

5 / 21 No-fault compensation for medical injuries has also been proposed from time to time, but also without tangible result. For example, a Department of Health consultation paper in 2003 found that there was a case for no-fault compensation to be paid in respect of birth injuries resulting in severe neurological impairment31, but this was not taken up in the subsequent Act that implemented other recommendations from the consultation paper32.

D.Universal no-fault

5 / 22 A possible model for a more thorough-going reform is provided by New Zealand’s no-fault accident compensation scheme, introduced in 1974. This implemented the proposals of an iconic official report by the judge Sir Owen Woodhouse33. Woodhouse found that » [ t ]he negligence action is a form of lottery « and criticised the overall compensation system – also including workers’ compensation and social security – of which it was part: » Such a fragmented and capricious response to a social problem which cries out for co-ordinated and comprehensive treatment cannot be good enough. «34 The report proposed » two fundamental principles «: » First, no satisfactory system of injury insurance can be organised except on a basis of community responsibility; Second, wisdom, logic, and justice all require that every citizen who is injured must be included, and equal losses must be given equal treatment. There must be comprehensive entitlement « 35.

Further aspects of the framework proposed were a commitment to complete rehabilitation and real ( though not » full « ) compensation, and recognition of the need for administrative efficiency.

29Oliphant in: van Boom / Faure, Shifts in Compensation nos 22 and 32 ff.

30Oliphant in: van Boom / Faure, Shifts in Compensation no 70.

31Chief Medical Officer, Making Amends: A consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS ( Department of Health, 2003 ).

32NHS Redress Act 2006.

33Royal Commission of Inquiry ( Chairman: The Honourable Mr Justice Woodhouse ), Compensation for Personal Injury in New Zealand ( 1967 ) [ Woodhouse Report ].

34Ibidem § 1.

35Ibidem § 1.

Cover under the scheme attaches to various specified categories of personal injury, including personal injury caused by an accident, work-related diseases, infections and processes, and medical treatment injuries. It is immaterial whether the injury was caused by another person’s fault. There are specific exclusions from the scheme in respect of illnesses and infections – except if workrelated, or the result of treatment injury – and the consequences of ageing.

The compensation provided is » real « but not » full «. It covers both economic and non-economic losses, and includes, where appropriate, weekly compensation, paid at 80 % of pre-accident earnings, up to a fixed maximum of approximately 2.5 times average weekly income for those in paid employment, lump-sum compensation for non-economic loss, paid in respect of permanent impairment assessed at 10 % or greater, at levels ranging between $ 2,500 and $ 100,000, and medical and rehabilitation expenses, including public healthcare fees and expenses such as the cost of home or vehicle adjustments, care assistance in the home, and the provision of a wheelchair.

The scheme is funded by levies on employers, the self-employed, motor vehicle licence-holders, and, since 1992, by employees ( » earners « ) too. A proportion of excise on petrol is also applied to the scheme, and there is additionally a measure of public subvention from general taxation.

Where cover exists under the scheme, civil litigation for compensatory damages in respect of the same injury is barred.

A brochure published in 2004 to mark 30 years of the scheme described it as 5 / 24 » [ t ]he most rational and the most humane compensation law in the world «37. Notwithstanding occasional grumblings about its operation in certain contexts, the scheme’s basic principles have a large measure of support within the country38. Nevertheless, a number of ( mainly foreign ) scholars have subjected it to criticism39. First, it is argued that it is unfair to limit the compensation paid to those injured by fault below the levels that would be awarded in a successful civil action

for compensatory damages40. Corrective justice, it is said, requires full compensa-

36Oliphant in: van Boom / Faure, Shifts in Compensation no 60 ff.

37Accident Compensation Corporation, Thirty Years of Kiwis Helping Kiwis, 1974-2004 ( 2004 ) 3.

38G. Wilson, ACC and Community Responsibility ( 2004 ) 35 Victoria University of Wellington Law Review ( VUWLR ) 969, 970.

39For an overview of criticisms, see J. Henderson, The New Zealand Accident Compensation Reform ( 1981 ) 48 University of Chicago Law Review ( U Chi L Rev ) 781.

40See eg R. Mahoney, New Zealand’s Accident Compensation Scheme: A Reassessment ( 1992 ) American Journal of Comparative Law ( Am J Comp L ) 159.

tion for losses attributable to the wrong. The principle undoubtedly has intuitive appeal, but does the tort system really achieve corrective justice in the imagined sense ? To Woodhouse, it did not. Legal fault ( the failure to attain the standard of the reasonable person ) is » a legal fiction «, and certainly does not connote moral culpability41. It is, in addition, an insubstantial basis for distinguishing between injury attracting full compensation and injury which left the victim to look for collateral sources of support. The negligence action is, in effect, » a form of lottery «42. In any case, the tortfeasor is almost always insulated from the direct cost of liability by insurance. Is it possible, then, to maintain ( or restore ) previously existing rights of action for victims of fault alongside the no-fault compensation entitlements extended to all suffering accidental personal injury ? This has been suggested from time to time by commentators43, but the New Zealand Law Commission has expressed its scepticism: » [ a ] supplementary tort liability scheme could duplicate the costs of compensating injury «44. In fact, the Woodhouse vision was explicitly premised on a costs calculation that the finances devoted to existing compensation systems ( tort, workers’ compensation and criminal injuries compensation ) would be redeployed to the new no-fault scheme.

5 / 25 A second criticism is that a no-fault compensation scheme cannot deter careless conduct, and, if its introduction is accompanied by the abolition of the deterrent of an action for damages in tort, must inevitably promote an increase in accident rates45. The evidence, it has to be said, is inconclusive. That cited in support of the criticism has relied excessively upon anecdote and personal observation46. On the other side of the argument, it has been shown that the available statistical evidence gives no reason to believe that the introduction of no-fault has increased accident rates47. It must also be remembered that the scheme has had available to

41Woodhouse Report ( FN 33 ) § 88.

42Woodhouse Report ( FN 33 ) § 1.

43See eg L. Klar, New Zealand’s Accident Compensation Scheme: A Tort Lawyer’s Perspective [ 1983 ] University of Toronto Law Journal ( UTLJ ) 33; R. Miller, The Future of New Zealand’s Accident Compensation Scheme ( 1989 ) 11 University of Hawaii Law Review ( U Hawaii L Rev ) 1; Mahoney ( 1992 ) Am J Comp L 159.

44New Zealand Law Commission, Comment on » The Future of New Zealand’s Accident Compensation Scheme « by R.S. Miller ( 1990 ) 12 U Hawaii L Rev 339, 342.

45See eg Mahoney ( 1992 ) Am J Comp L 159; Miller ( 1989 ) 11 U Hawaii L Rev 1; B. Howell, Medical Misadventure and Accident Compensation in New Zealand: An Incentives-Based Analysis ( 2004 ) 35 VUWLR 857.

46See eg Miller ( 1989 ) 11 U Hawaii L Rev 1, 37-8, whose conclusion that » disgracefully hazardous conditions had become endemic « as a consequence of the ACC reform is backed up by observations he made while visiting New Zealand as an overseas scholar, for example, that rugby players do not wear the helmets or padding used in American football.

47See generally New Zealand Law Commission ( 1990 ) 12 U Hawaii L Rev 339. C. Brown, Deterrence in Tort and No-Fault: The New Zealand Experience ( 1985 ) 73 California Law Review ( Cal L Rev ) 976, for example, has demonstrated that the predominantly downward trend in road accident casualties that started prior to 1974 continued and even accelerated after that date.

must be weighed what may be considered to be the scheme’s three principal achievements. First, it extends compensation entitlements beyond the class of those injured by another person’s fault, and so makes the receipt of compensation following an accident less of a lottery than it inevitably is under tort ( which compensates only a very small minority of accident victims, maybe as few as the 6.5 % estimated by a Royal Commission in the United Kingdom )50. Secondly, the resources necessary to achieve this more complete coverage are much more efficiently deployed than they would be in the tort litigation system. While the operating costs of the tort system ( in the UK ) have been calculated at 85 % of the value of total damages awards51, the comparable figure under the New Zealand scheme is only 12 % ( ie for every dollar paid on compensation or rehabilitation, only 12 cents is paid on overheads )52. Lastly, the no-fault scheme explicitly acknowledges community responsibility for both the production of accidental injury and its redress. Accidents are the inevitable by-product of activities which the community encourages, and from which the community as a whole benefits, and so the community bears causal responsibility for their occurrence53.

48For the latter, see Accident Compensation Act 2001, sec 175 and Accident Compensation ( Employer Levy ) Regulations 2004 ( SR 2004 / 23 ). Experience rating of employers was introduced in 1992 but not restored after a short experiment with privatization in 1999-2000. An earlier system of safety incentive bonuses was abandoned in the 1980s because it could not be shown that it contributed to improved accident prevention.

49See eg P.S. Atiyah, The Damages Lottery ( 1997 ) 183-4 ( adding that such state schemes also promote an undesirable » blame culture « ). In this book, Atiyah, previously a proponent of no-fault ( see especially his book Accidents, Compensation and the Law, first published in 1969 but now

edited by P. Cane [ 7th edn 2006 ] ), declared his preference for first-party insurance as the solution to the social problem of accidental injury.

50Royal Commission on Civil Liability and Compensation for Personal Injury ( Chairman: Lord Pearson ), Report ( 1978 ) [ Pearson Report ] vol 1, § 78.

51Pearson Report, vol 1, § 83.

52Accident Compensation Corporation, Annual Report 2005 ( 2005 ) 74.

53See further R. Gaskins, Environmental Accidents ( 1990 ).

E.Private insurance

5 / 28 A more radical proposal still is to abolish tortious liability for personal injury – and replace it with nothing, leaving private first-party insurance to fill the gap to the extent that individuals desire54. It is claimed that this would serve to avoid the excesses and deficiencies of the tort system, while allowing individuals to tailor the cover they purchase to their own needs. Though the main proponent of the idea is hugely respected for his work on compensation and liability for accidents, the proposal has attracted very little support55.

III.  Certainty versus flexibility

5 / 29 The tension between certainty and flexibility is an enduring feature of tort law in common law, and perhaps all legal systems. Features of the law can be highlighted that illustrate both tendencies. On the one hand, one might mention the general acceptance that the indeterminate scope of a potential liability may be a good reason for denying the existence of a duty of care in a whole category of cases56, a toleration of » bright line « rules whose effects are to some extent arbitrary57, a preference for what is pragmatic over what is principled58, and the not infrequent rejection of innovation in the law on the grounds that it would lead to uncertainty59. On the other hand, one sees a more flexible approach in the acceptance of the apportionment of liability where there is contributory negligence60, the recognition ( within limits ) of proportional liability in cases of causal uncer-

54Atiyah, The Damages Lottery.

55For criticism, see A. Ripstein, Some Recent Obituaries of Tort Law ( 1998 ) 48 UTLJ 561; J. Conaghan / W. Mansell, From the Permissive to the Dismissive Society: Patrick Atiyah’s Accidents, Compensation and the Market ( 1998 ) 25 Journal of Law and Society 284.

56That is cases falling outside the set of recognised » duty situations «: see Clerk & Lindsell on Torts 20 ( 2010 ) § 8.05 ff.

57For example in the area of liability for psychiatric harm: see eg Alcock v. Chief Constable of South Yorkshire [ 1992 ] 1 AC 310; Page v. Smith [ 1996 ] AC 155; White v. Chief Constable South Yorkshire Police [ 1999 ] 2 AC 455. In the latter case, at 500, Lord Steyn remarked that » the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify « but lamely concluded that the radical reform required was beyond the capacity of the courts and had to be left to the legislature.

58Caparo Industries plc v. Dickman [ 1990 ] 2 AC 605, 618 per Lord Bridge and 628 per Lord Roskill.

59See eg D. v. East Berkshire Community Health NHS Trust [ 2005 ] United Kingdom House of Lords ( UKHL ) 23, [ 2005 ] 2 AC 373 at [ 94 ] per Lord Nicholls, rejecting a less rigid distinction between issues of duty and breach on the basis that it was » likely to lead to a lengthy and unnecessary period of uncertainty in an important area of the law «.

60See no 5 / 139 f below.

tainty61, the explicit weighing of policy considerations in deciding whether the scope of the duty of care should be extended beyond the limits established in previous cases62, and in many other specific features of tort law. At a deeper level, one might also say that, by allowing the award of exemplary damages, the common law recognises that there is a fluid transition between tort and criminal law63. Of course, this is an issue that has generated excited debate, with powerful contributions on both sides of the argument.

Looking at the broader picture, Waddams64 has mounted a sustained attack 5 / 30 on the idea that the complexity of Anglo-American private law can be success-

fully accommodated within a strictly-demarcated classificatory framework. As he notes, key developments in the law have often occurred when fundamental concepts have operated cumulatively and in such a way as to preclude allocation of the legal issue to a single doctrinal category. However, the » pigeonholing « tendency that writers like Waddams criticise probably remains the dominant attitude of the courts.

61See no 5 / 108 ff below.

62Under the third stage of the approach to the duty of care derived from Caparo Industries plc v. Dickman [ 1990 ] 2 AC 605.

63See no 5 / 48 below. Cf Basic Questions I, nos 1 / 22 f and 2 / 55 ff.

64S. Waddams, Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning ( 2003 ) [ K. Oliphant in: H. Koziol / B.C. Steininger ( eds ), European Tort Law 2003 ( 2004 ) 113, no 63 ].

from it. In the past – prior to development of the land register – it also acted as a mechanism for deciding ownership of property. These propositions apply to both real and personal property, and pari passu to rights in the person.

ference with them contrary to Torts ( Interference with Goods ) Act 1977, the court may, at its discretion, make an order for delivery of the goods by the defendant

66Civil Procedure Rules 1998, Part 55.

67A. Kiralfy, The Problem of a Law of Property in Goods ( 1949 ) 12 MLR 424, 424.

68General & Finance Facilities Ltd. v. Cooks Cars ( Romford ) Ltd. [ 1963 ] 1 WLR 644 at 649 f, per Diplock LJ; M. Lunney, Wrongful Interference with Goods, in: K. Oliphant ( ed ), The Law of Tort 2 ( 2007 ) § 11-102.

69General & Finance Facilities Ltd. v. Cooks Cars ( Romford ) Ltd. [ 1963 ] 1 WLR 644 at 649 f, per Diplock LJ; Lunney in: Oliphant, The Law of Tort 2 § 11-102.

to the claimant70. This means that the availability of an order for the delivery of goods is conditional on a liability established in tort ( conversion ). In this respect, English law may be contrasted with its continental neighbours where the claim for delivery ( vindicatio ) is independent of tortious liability.

5 / 38 Adopting a tort-based approach to the recovery of chattels has the consequence that a fault-free defendant through whose hands the property has passed, but who no longer has possession of it, may be liable to the claimant for its value as well as any consequential loss. The classic example is Fowler v. Hollins71. A rogue fraudulently obtained some cotton from Fowler. Hollins, whose ordinary business was that of a cotton broker, bought the cotton from the rogue in the belief that one of his ordinary clients would buy it and subsequently sold the client the cotton; Hollins received only a broker’s commission on the sale. Although Hollins had no knowledge of the fraud, he was held liable in conversion. He had made himself a principal on the sale and had transferred the cotton to his client, an act which was inconsistent with the rights of the owner72. Because of the harshness of this rule, the courts have been driven to limit or recognise exceptions to the liability so as to protect the fault-free dealer. For example, an auctioneer who accepts goods for sale at auction and then returns them unsold to the person who supplied them,

who turns out to be a rogue, is not liable in conversion to the person truly entitled to possession73.

III.  Injunctions74

5 / 39 By sec 37( 1 ) of the Senior Courts Act 1981, » [ t ]he High Court may by order ( whether interlocutory or final ) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so «75. In general, the exercise of this power presupposes the existence of an actual or potential claim for substantive relief which the court has jurisdiction to grant76 and the dominant modern view is that the power of the court is restricted to this and certain other exclusive categories77.

70Secs 3( 2 ), ( 3 ) ( a ).

71( 1872 ) Law Reports ( LR ) 7 Queen’s Bench ( QB ) 616; affd ( 1875 ) LR 7 House of Lords ( HL ) 757.

72Lunney in: Oliphant, The Law of Tort 2 § 11-6 ff.

73Marcq v. Christie, Manson & Woods Ltd. [ 2004 ] QB 286.

74See generally K. Oliphant, Injunctions and Other Remedies, in: idem, The Law of Tort 2 ( 2007 ) 373.

75The county courts are given equivalent powers by County Courts Act 1984, sec 38 ( as amended ).

76Siskina ( Cargo Owners ) v. Distos Compania Naviera S.A., The Siskina [ 1979 ] AC 210, 254 per Lord Diplock.

77South Carolina Assurance Co. v. Assurance Maatschappij de Zeven Provincien N.V. [ 1987 ] AC 24, 40 per Lord Brandon.

tic in its effect than a prohibitory injunction, the jurisdiction to make such an award is » to be exercised sparingly and with caution «87. There are four governing propositions: the plaintiff must show a very strong probability that grave damage will accrue to him in the future; damages will not be a sufficient or adequate remedy if some damage does accrue; the possible damage to the plaintiff must be balanced against the cost to the defendant of doing works to prevent its occurrence or lessen its likelihood; and the terms of the injunction must be stated clearly so that the defendant is made aware of precisely what he has to do88.

78[ 1986 ] WLR 1120, 1130.

79Day v. Brownrigg ( 1878 ) 10 Law Reports, Chancery Division ( 2nd Series ) ( Ch D ) 294, 304 per Jessel MR.

80Associated Newspapers Group plc v. Insert Media Ltd. [ 1988 ] 1 WLR 509, 513 per Hoffmann J.

81Injunctions are generally available in respect of the commission of a tort, but their application to some particular types of tortious liability, including the liability for negligence, has been doubted. See Oliphant in: idem, The Law of Tort 2 § 8.6.

82Quartz Hill Consolidated Gold Mining Co. v. Beall ( 1882 ) 20 Ch D 501; Proctor v. Bayley ( 1889 ) 42 Ch D 390.

83Hooper v. Rogers [ 1975 ] Law Reports, Chancery Division ( 3rd Series ) ( Ch ) 43.

84Armstrong v. Sheppard & Short Ltd. [ 1959 ] 2 QB 384, 396 per Lord Evershed MR.

85Oliphant in: idem, The Law of Tort 2 § 8.12 ff.

86Senior Court Act 1981, sec 50.

87Redland Bricks Ltd. v. Morris [ 1970 ] AC 652, 665 per Lord Upjohn.

88Redland Bricks Ltd. v. Morris [ 1970 ] AC 652, 665 f per Lord Upjohn.

IV.  Self-help

5 / 42 A person may excuse the use of force against the person or property of another by raising a defence of self-defence or necessity. Likewise, an owner or person entitled to the immediate possession of land may use force to eject a trespasser, provided the force used is reasonable89. By an Act of 2003, however, a more lenient test of whether the act was » grossly disproportionate « now applies where the defendant acted only because he believed it was necessary to do so to recover property90. Additionally, the remedy of abatement is available in respect of a nuisance or trespass by encroachment – for example, by trimming the overhanging branches of a neighbour’s tree or by entering neighbouring land to remove the trouble at source, so long as this can be done peaceably and without causing disproportionate hardship. As a general rule, the abator should give notice before entering for this purpose. There is no right to abatement where the injured party has previously brought an unsuccessful action for a mandatory injunction to remove the offending object . Because victims of a nuisance or trespass generally ought not to take the law into their own hands, the right of abatement is subject to significant limitations and should be restricted to simple cases which would not justify the expense of legal proceedings and urgent cases which require an immediate remedy91.

V.  Unjust enrichment

5 / 43 The law of restitution has developed rapidly in England and the Commonwealth in recent decades, with the development of general theories of unjust enrichment in place of what had previously been seen as a motley set of at best distantly related rules grouped under the headings quasi-contract and quasi-tort92. It is accepted that what are sometimes termed » restitutionary damages « are sometimes available in respect of the commission of a tort, though they are not a general remedy in the law of tort. Indeed, whether they are ever a remedy for a tort as such – as opposed to an unjust enrichment that is coincidentally a tort – may be disputed93.

89Hemmings v. Stoke Poges Golf Club Ltd. [ 1920 ] 1 Law Reports, King’s Bench ( KB ) 720. Statutory limitations apply in respect of dwellings and tenancies.

90Criminal Justice Act 2003, sec 329.

91Oliphant in: idem, The Law of Tort 2 § 8.62 ff.

92See especially C. Mitchell / P. Mitchell / S. Watterson, Goff & Jones: The Law of Unjust Enrichment 8 ( 2011 ); P. Birks, An Introduction to the Law of Restitution ( revised edn, 1989 ).

93See generally Law Commission, Aggravated, Exemplary and Restitutionary Damages ( Law Com No 247, 1997 ); J. Edelman, Gain-Based Damages ( 2002 ); C. Rotherham, The Conceptual Structure of Restitution for Wrongs [ 2007 ] Cambridge Law Journal ( CLJ ) 172.

In any case, it is clear that there can be an unjust enrichment without any element of tortious conduct – for example, the recipient of a mistaken payment is prima facie obliged to return its value even though not at fault or otherwise responsible for its receipt or retention.

VI.  Avoidance of contracts

The UK’s insolvency legislation contains specific provisions against debt avoid- 5 / 44 ance. Whether or not insolvency proceedings have been commenced, a company’s transaction at an undervalue ( including a gift ) may be avoided if done for the pur-

pose of putting assets beyond the reach of a person who is making, or may at some time make, a claim against him, or of otherwise prejudicing the interests of such a person in relation to such a claim. In such a case, the court may make such order as it thinks fit for restoring the position to what it would have been if the transaction had not been entered into, and protecting the interests of persons who are victims of the transaction94. For example, it may require any property transferred as part of the transaction to be vested in any person, either absolutely or for the benefit of the victims of the transaction or it may require payment to any person in respect of benefits received from the debtor of such sums as the court may direct95. The order may be made against any person, but may not prejudice any interest in property which was acquired from a person other than the debtor and was acquired in good faith, for value and without notice of the relevant circumstances96. It follows that the person receiving the property from the debtor may be subject to such order even if acting in good faith, providing value, and lacking notice of the relevant circumstances. Such person can thus be ordered to give up property or make a payment even in circumstances in which ( eg for lack of fault ) no tortious liability would arise.

94Insolvency Act 1986, sec 423. The provision has » a long pedigree « in English law, dating back to the Fraudulent Conveyances Act 1571: G. Miller, Transactions Prejudicing Creditors [ 1998 ] Conveyancer and Property Law ( Conv ) 362, 363. Its roots lie in the actio Pauliana of Roman law: A. Keay, Transactions Defrauding Creditors: The Problem of Purpose under Section 423 of the Insolvency Act [ 2003 ] Conv 272, 274. As regards the separate power to set aside transactions at an undervalue or the grant of a preference in the period before the onset of insolvency, see Insolvency Act 1986, secs 288 and 289. As regards individuals who are adjudged bankrupt, see Insolvency Act 1986, sec 284.

95Insolvency Act 1986, secs 424( 2 ) and 425.

96Insolvency Act 1986, sec 425( 2 ).

VII.  Damages

5 / 45 Damages are the primary remedy for torts, breaches of contract and other common law wrongs. They may take the following forms: compensatory damages; restitutionary damages; exemplary ( or punitive ) damages; aggravated damages; nominal damages; and contemptuous damages.

A.Compensatory damages

5 / 46 Compensation is the principal aim of damages in all common law systems. The objective is sometimes expressed through the Latin phrase restitutio in integrum. The basic rule is that » compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong «97.

B.Restitutionary damages

5 / 47 These are considered under no 5 / 43 above.

C.Exemplary ( or punitive ) damages

5 / 48 Punitive or, as most prefer to call them, exemplary damages are recognised by English law but confined at common law to two established categories: oppressive, arbitrary or unconstitutional action by servants of the government, and wrongful conduct by the defendant which has been calculated by him to make a profit for himself which may well exceed the compensation payable to the claimant98. It remains unclear whether exemplary damages are available in respect of all torts or only specific causes of action99. In some Commonwealth jurisdictions, a wider right to exemplary damages is recognised.

D.Aggravated damages

5 / 49 Aggravated damages are compensatory in purpose, but compensate for non-pe- cuniary harm that does not fall under the normal heads of non-pecuniary loss100

97Lim v. Camden & Islington Area Health Authority [ 1980 ] AC 174, 187 per Lord Scarman.

98Rookes v. Barnard [ 1964 ] AC 1129. See further V. Wilcox, Punitive Damages in England, in: H. Koziol / V. Wilcox ( eds ), Punitive Damages: Common Law and Civil Law Perspectives ( 2009 ).

99See K. Oliphant, England, in: H. Koziol / B.C. Steininger ( eds ), European Tort Law 2001 ( 2002 ) no 45, discussing Kuddus v. Chief Constable of Leicestershire [ 2001 ] UKHL 29, [ 2002 ] 2 AC 122.

100See no 5 / 76 ff.

attributable to the tortious injury ( eg distress suffered as a result of a hostile crossexamination at trial ). It has been observed that the distinction between basic and aggravated damages is necessary because the right to recover for intangible consequences such as humiliation, injury to pride and dignity, as well as for the hurt caused by the spiteful, malicious, insulting or arrogant conduct of the defendant, attaches to some causes of action and not others101. However, aggravated damages have some features which make them appear punitive as they traditionally require that the defendant should be guilty of some exceptional misconduct. In 1997, the Law Commission recommended legislation to clarify the role of aggravated damages102, but the Government subsequently concluded that it is now sufficiently clear that the purpose of aggravated damages is compensatory and not punitive as to obviate the need for a statutory definition103.

E.Nominal damages

The award of nominal damages denotes that the claimant’s rights have been in- 5 / 50 fringed by the defendant’s tortious conduct even though the claimant has suffered

no loss as a consequence. Their practical relevance is thus in the areas of torts actionable per se. Though successful claimants are awarded no more than a few pounds, they will normally also obtain a costs order in their favour, even if ( for example ) they fail in a concurrent attempt to gain an injunction. Additionally, the award performs the important function of vindicating the claimant’s rights. There is no separate category of vindicatory damages. Though the making of a substantial vindicatory award in cases of serious infringement of the claimant’s right has been supported by some authorities104, it was comprehensively rejected by the Supreme Court in 2011105, with the approval of the majority of scholars106.

101Rowlands v. Chief Constable of Merseyside Police [ 2006 ] Court of Appeal ( Civil Division ) ( EWCA Civ ) 1773, [ 2007 ] 1 WLR 1065 at [ 27 ].

102Aggravated, Exemplary and Restitutionary Damages ( Law Com No 247, 1997 ).

103Department of Constitutional Affairs, The Law of Damages ( CP 9 / 07, 2007 ) para 205. As to aggravated damages in English law generally, see A.J. Sebok / V. Wilcox, Aggravated Damages, in: H. Koziol / V. Wilcox ( eds ), Punitive Damages: Common Law and Civil Law Perspectives ( 2009 ) 257 ff.

104Ashley v. Chief Constable of Sussex Police [ 2008 ] 1 AC 962 at [ 22 ]–[ 23 ] and [ 29 ] per Lord Scott.

105R ( on the application of Lumba ) v. Secretary of State for the Home Department [ 2011 ] United Kingdom Supreme Court ( UKSC ) 12, [ 2012 ] 1 AC 245.

106See V. Wilcox, Vindicatory Damages: The Farewell ( 2012 ) 3 Journal of European Tort Law ( JETL ) 390, with further references.