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Part  3 The tasks of tort law

I.  Introductory remarks

of goals, aims, tasks, functions, etc, of the law of tort. In fact, quite a number of objectives have been identified111, including the vindication of the rights112, denunciation of the defendant’s wrong, education of people generally as to proper stand-

108A recent attempt to analyse the English law of negligence in corrective justice terms may be found in Beever, Rediscovering the Law of Negligence.

109E. Weinrib, The Idea of Private Law ( 1995 ) 1.

110Ibidem 2.

111See generally G. Williams, The Aims of the Law of Tort [ 1951 ] Current Legal Problems ( CLP ) 137.

112R. Stevens, Torts and Rights ( 2007 ).

ards of conduct, and the peaceful settlement of disputes arising from the accidental infliction of injury ( » appeasement « )113. The two most often cited objectives of tort law, however, are compensation and deterrence.

II.  Compensation

5 / 57 » Compensation « is frequently cited as an objective of the law of tort, but there is some slippage between two distinct conceptions: first, that tort law should be evaluated by its ability to compensate for all injuries; secondly, that tort law aims at compensation as part of a regime of corrective justice. The first is a normative claim and manifestly implausible: tort law cannot be expected to compensate for all injuries, and even if it could its costs would be far too great. The second is more of a descriptive claim: tort law – by compensating for harm done by A to B in circumstances where A is fairly accountable for it – corrects what would otherwise be an injustice. Nowadays, compensation is most often thought of in the latter terms, which evidently leaves open the crucial question of when, and for what harms, one person is fairly accountable in tort law to another.

III.  Deterrence

5 / 58 The deterrence function of tort law is said to have been first proposed in England by Jeremy Bentham ( 1748–1832 )114, but has achieved especial prominence through the writings of mainly American scholars who analyse tort law in economic terms and posit economic efficiency as its ultimate goal. Though many of the key insights of the economic analysis of law were anticipated in the judicial and extrajudicial writings of Baron Bramwell in the late nineteenth century115, modern law and economics has not gained much of a foothold amongst tort lawyers in England or elsewhere in the Commonwealth. Deterrence is mostly viewed as a useful by-product of civil liability, rather than its overriding objective.

113Williams [ 1951 ] CLP 137, 138 ( commenting that this function takes a subordinate place in the modern law ).

114Williams [ 1951 ] CLP 137, 144.

115See K. Oliphant, Rylands v Fletcher and the Emergence of Enterprise Liability in the Common Law, in: H. Koziol / B.C. Steininger ( eds ), European Tort Law 2004 ( 2005 ) 81, no 47 ff.

IV.  Punishment

Viewed in historical terms, punishment is certainly not alien to tort. According to 5 / 59

Sir Henry Maine, for example, » the penal law of ancient communities is not the law of crimes; it is the law of wrongs, or, to use the English technical word, of torts «116.

Still, though » punitive « or » exemplary « damages may be awarded in England and certain Commonwealth jurisdictions in particular circumstances117, punishment as such is not nowadays considered the function of tort law.

V.  Mixed accounts

Probably most tort lawyers in England and the Commonwealth would say that 5 / 60 tort law pursues a mixture of different tasks118, but there must be constraints on

what it can do for reasons of fairness to the parties, as well as administrative efficiency. A particularly notable account of this nature has been provided by Tony Honoré 119. In his view, it is a mistake to search for a single justification ( eg compensation or deterrence ) for the system as a whole, or even to think in terms of a compound aim for the system ( eg a mixture of compensation, deterrence and corrective justice ). That would be to run together questions that ought to be kept separate. For present purposes, it is enough to highlight just three: ( a ) what general aims justify the state in maintaining a system of tort law ?; ( b ) what justifies the person whose rights have been infringed in claiming compensation from the wrongdoer ?; and ( c ) subject to what conditions may one who by his conduct has infringed the rights of another be required to pay compensation ?

A. General justifying aims

of undesirable conduct by stamping it as wrongful ( though in a less stigmatic way than criminal law ), forbidding it or, at a minimum, warning those who indulge in it of the liability they may incur. To that extent, tort law can be seen as a means of social control. But at the same time, by creating torts rather than crimes, the law

116Ancient Law ( 1861 ) 328.

117See no 5 / 48 above.

118Cf the theory of » complementarity « applied to tort law by I. Englard in: D.G. Owen ( ed ), The Philosophical Foundations of Tort Law ( 1997 ).

119T. Honoré, The Morality of Tort Law: Questions and Answers, in: idem, Responsibility and Fault ( 1999 ).

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Part  4 The area between tort and breach of an obligation

I.  Introductory remarks

It is certainly true that there are some civil wrongs that are hard to ascribe ex- 5 / 64 clusively to the law of tort as opposed to some other category of obligation. One example is provided by the law of bailment. At common law, the bailee of goods

owes a duty to take reasonable care of the goods and to refrain from converting them. To that extent, any liability arising is concurrent with a liability in tort. But some of the bailee’s obligations are incapable of being categorised as tortious or contractual in nature, for example, the strict obligation to compensate loss or damage resulting from the bailee’s departure from the terms of the bailment, which applies even to an unrewarded bailee under a gratuitous bailment ( there being no contract by reason of a lack of consideration )121. That is a liability that may best be regarded as sui generis. Claims against an agent for breach of warranty of authority may fall into this category, as well as claims for misrepresentation. The obligations of common carriers and innkeepers should also be mentioned in this context.

II.  Tort, breach of contract and the intermediate area

Particular attention has been given to the intermediate area between tort and con- 5 / 65 tract – or » contorts « as one commentator has wryly called it122. In Hedley Byrne &

Co. v. Heller & Partners Ltd.123, the House of Lords departed from the longstanding general exclusion of extra-contractual liability in respect of pure economic loss, and recognised in principle that liability might arise where one party voluntarily assumes responsibility to another in the context of a special relationship that is » equivalent to contract «. The new liability principle was considered to be a principle of the law of tort, but it was recognised that it stands apart from tort law as customarily conceived. Amongst its distinguishing features are that it is based on an

121Mitchell v. Ealing London Borough Council [ 1979 ] QB 1, [ 1978 ] 2 All England Law Reports ( All ER ) 779.

122S. Hedley, Negligence – Pure Economic Loss – Goodbye Privity, Hello Contorts [ 1995 ] CLJ 27.

123[ 1964 ] AC 465.

obligation that is voluntarily assumed by the defendant, rather than imposed by law in the way of tort obligations generally, that it requires a preexisting relationship between the parties, and of course that the loss suffered is purely economic, which is generally the field of contract law rather than tort. Though the development has mostly been viewed with favour, it is also recognised that it has the potential to » short-circuit « the ordinary requirements applicable to the enforcement of contractual undertakings, for example, by giving the claimant the benefit of a gratuitous undertaking124, or of a contractual undertaking contained in a contract to which the claimant was not privy and which is not directly enforceable by him125. Consequently, the further development of Hedley Byrne liability has been extremely cautious, especially in England.

124In English law, a gratuitous undertaking is not contractual because ( by definition ) no consideration is provided as a quid pro quo.

125Cf Contracts ( Rights of Third Parties ) Act 1999.