Tort Law is a Law of Wrongs

Tort Law

Introduction

Tort law is a law of wrongs. The term “tort” entails wrong.[1] According to John (2005), “Before tort was identified as a legal category in its own right, torts were known as ‘private wrongs’.”[2] In modern tort cases the view of the Judicial is defendants owe duties to abstain from unfair conduct. Courts opine as to whether those responsibilities have been violated. Substantial tort philosophy is filled with principles and constructs that convey the idea of one person wronging another.[3] Understandable as the preceding reflections lays claim that tort law is a law of wrongs which is today controversial, possibly in disrespect. A main source of the problem is this: “the idea of committing wrong carries obvious moral connotations, yet some fundamental features of tort doctrine seems to cast doubt on whether tort really has anything to do with wrongful conduct” (John, et. all, 2004).

This paper seeks to justify that the tort law with regard to liability is too little in case of

1. Economic loss.

2. Psychiatric injury and wrongful life

3. Defamation

Economic Loss

Till the 1970s the law on liability for economic loss due to negligent acts was easy. Actually there was no legal responsibility with regard to ‘pure’ economic loss. Economic loss due to a negligent act may result in physical harm to a third party’s property. This loss due to the damage may disrupt the claimant’s capability to continue his business, as in:

Cattle v Stockton Waterworks (1875) LR 10 QB 453

Weller v Foot and Mouth Disease Research Institute [1966] 1 QB 569

Economic torts defend people from intrusion with their business. This also includes the dogma of restraint of trade and has for the most part been sunken in the twentieth century by statutory treatments on combined labour law and modern antitrust. The “absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon” (Markesinis and Deakin’s, 2003, p.509).

Two cases established economic tort’s kinship to competition and labour law. In Mogul Steamship Co. Ltd.[4] the plaintiff indicated he had been forced back from the Chinese tea market by challengers at a ‘shipping conference’ that had come unitedly to dump his company. But this alliance was found legally recognised and “nothing more [than] a war of competition waged in the interest of their own trade.”[5]

In this day and age, this cartel could be regarded an illegal cartel. In labor law the most outstanding case is Taff Vale Railway v. Amalgamated Society of Railway Servants.[6] In this case The House of Lords thought that unions have the liability in tort for aiding workers to strike for improved payment and working conditions. But it annoyed workers and finally led to the institution of the British Labour Party as well as the Trade Disputes Act 1906. In addition to this torts applied against unions are conspiracy,[7] meddling with a profitable contract[8] or threats.[9]

A general clarification of the economic loss rule links to the ingredient of anticipation of the harm. It has been recommended that tort principles based on predictability was formulated for physical damage and is not practicable outside such settings. The development of the economic loss rule is explicated as a no-nonsense progress of the law. But when the conventional predictability test is linked with cases of pure financial loss then it leads to disastrous levels of liability (Feldthusen, 1989, pp.10-11).[10]

But under negligence rule, an injury restraining defendants’ accountability to victims’ losses will either ensue in optimum care or too little care. Thus, when required, any alteration to compensation must always be positive (Polinsky and Rubinfeld, 1988). If the litigation costs are not very high then it becomes certain that injurers will surely take due care of the victims. But since this is not the case and the costs are very high that the suit is discouraged (Kidner, 2006).

. The chance of court making a mistake in deciding about the injurers’ accountability under a negligence rule also affects the optimum damage rule. Particularly, if courts are prone to err in determining the due care taken by the injurer then negligence liability rule with complete compensation damage will not essentially tempt injurers to take due care. Courts may sometimes commit error in judging a careful injurer liable and a negligent injurer not liable – under reasonable conditions. Under such circumstances excessive care taking will result in additional costs. Care-taking will be unwarranted if damage awards fully compensate victims for their losses (Mauro and Palmer, 2003)

. Thus injurers will react to doubtfulness by taking excessive care – unless the court does not underestimate injurers’ care degrees and the dispersion of errors is not too disseminated (Shavell, 1987).

Both literally and hypothetically, therefore, the law cannot be acceptable by an unforeseeability concept. Many accidents give rise to a sequence of costly economic results. These economic consequences can be statistically calculated and causally connected to the illegal action. As a rule, the existence or nonexistence of predictability is a realistic and legal issue that gets into the equation of liability in the directions fixed by the legal system. At the same time it is better that no a priori difference can (or should) be made among economic and no economic effects of a tort (Mauro and Palmer, 2003)

In addition to this, it is the plaintiff who has always to tolerate the burden of establishing the loss by a prevalence of evidence. This may discourage possible claimants from instituting suit in cases of severe estimation difficulty and decrease the probability of exaggerated and conniving claims (Mauro and Palmer, 2003). Finally, courts have the necessary capability to carry on with evaluation issues and collusive claims as this seems to be their everyday duty.[11] They usually estimate economic losses in other circumstances, like breach of contract, misrepresentation and economic torts.

Psychiatric injury and wrongful life

Of late the area of psychiatric illness has become very popular and growing interest in this area of the law has been deepened by the extensive media reporting that has been rendered to prestigious cases. In reality this attention from the media actually focused on the proceedings that followed the tragedy at the Hillsborough football stadium.[12] Ninety-six viewers died and more than four hundred were wounded due to crushing when fans were allowed to enter a porch that was previously full. Claims for psychiatric illness were made for by relatives of those killed or injured in the tragedy [13] and by police officers who took care at the scene.[14] In this case most of the officers were allowed to recover damages, but most of the relatives of the dead and injured could not succeed in their claims. The obvious inequality of this situation has been approved by judges,[15] newspapers,[16] MPs[17] and legal commentators.[18]

The question of liability for psychiatric illness evokes a series of strongly-held opinions. Some argue that similar principles which apply to liability for physical injury should be enforced to liability for psychiatric illness as well. They are of the opinion that there is no justifiable reason to inflict special restrictions with regard to claims for the latter (Mullany and Handford, 1993). While some others argue that liability for psychiatric illness should be discarded altogether. They feel that the litigation rules required to manage possible liability are so non-natural that they defame the law (Stapleton, 1994).

Quite a large amount of relevant decisions are found on this subject out of which two are particularly important.[19] For example in Page v Smith,[20] the House of Lords (held that “where a person suffered psychiatric illness as a result of his or her ‘direct involvement’ in an accident, general principles of negligence applied so that the rules relating to liability were no different from those which would have applied if the plaintiff had suffered a physical injury.”

Where as, In Frost v Chief Constable of South Yorkshire Police,[21] the Court of Appeal granted damages, to police officers who had endured psychiatric illness, while doing their professional duties at the scene of the Hillsborough football stadium disaster.

Much mix-up is consequently rendered by the use of informal language. The case law denotes unresponsively to ‘loss of amenity’, ‘letdown’ and ‘injury to beliefs’ without making any effort to evaluate whether such words are applied in the same wisdom or stand for different kinds of 1oss. This was the outcome of the case Rookes v Barncird [1964].[22]

While claiming damages for Psychiatric Illness there is two preconditions which are to be fulfilled. The first one is a Recognisable Psychiatric Illness which in the words of Lord Bridge: “The first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.”[23] Any “recognisable psychiatric illness” will serve, [24]and restitution has been rendered in the past for morbid depression,[25] as well as hysterical personality disorder,[26] post-traumatic stress disorder etc. Normally expert medical proof is required to demonstrate that the plaintiff has endured a recognisable psychiatric illness.

The second precondition is foreseeability of the psychiatric illness is looked at ex post facto with regard to all that has occurred. Unless retrospection is used, as per Lord Jauncey “[t]he question ceases to be whether it is foreseeable that a reasonably robust person would have suffered psychiatric illness as a result of what actually happened and becomes instead whether it is foreseeable that such a person would have suffered psychiatric illness as a result of what might have happened but did not in fact do so.”[27]

In Hinz v Berry, an individual who endured from severe grief and sorrow, but did not come under the group of a discerned psychiatric malady was unable to reclaim damages. The reason stated was that a person can be able to cope with grief. Cooke (2005) states that: “To succeed in a tort of negligence action, the claimant must prove three factors. Firstly, the defendant owed them a duty of care. Secondly, the defendant was in breach of that duty. Thirdly, the claimant suffered damage caused by the breach.”

Defamation

Defamation means defiling the status of someone. It is separated into two components, slander and libel. Slander denotes verbal defamation and libel is slandering an individual by print or transmitting. To defame someone, a truthful assertion has to be made and such assertion will not have any evidence of its truth (Wright. 2001)

In the present era, the legal difference between libel and slander has been constricted. Defamation cases regard libel, and modern writers use the term “defamation” to identify both libel and slander. Defamation consists of the following (Abbott, 2001):

(1) A defamatory statement;

(2) Published to third parties; and

(3) Which the speaker or publisher knew or should have known was false.

Injury to repute can be devastating and continuing. If such harm are by the circulation of falsehoods, then in the best interest of the society an interest in facilitating redress should be allowed. Reputation, as Lord Nicholls explicated in Reynolds v Times Newspapers, does matter, and not merely for its service to the individual concerned: “Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed, choice, the electorate needs to be able to identify the good as well as the bad.” [28] (http://www.lse.ac.uk/ collections/law/ news/libel. Pdf, retrieved on 24th April, 2010).

Defamation is a problematic and dicey area of law, established on legislative acts, English common law and many refutations. No doubt it is known a “peculiar tort”. In Broadway Approvals, Ltd. v. Odhams Press, Ltd.,[29] “The law of libel seems to have characteristics of such complication and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels.” It was stated in the case as defamation tort law protects reputation and not feelings.

The burden in a defamation shifts to the defendant to establish any of the following three defences (https://www.lawteacher.net/tort-law/lecture-notes/defamation-lecture.php accessed on 24th April, 2010):

(1) Truth (or vindication),

(2) Reasonable remark on a subject of public awareness, or

(3) It was made on an advantaged time.

(4) Unintentional defamation, and

(5) Consent.

The law of defamation actually can be related back to ancient times, and even though it has developed considerably, modern stems are evident in its origins. The civil law version formulated from the Roman acto injuriarum, which concentrated more towards the “intentional and unjustified hurting of another’s feelings” over harm to public status.[30] Publishing of the insult augmented the trauma, but was not a demanded constituent of the offence. The common law action developed out of the English ecclesiastical courts’ collapse to deal adequately with defamation. While the church courts could command offenders to apologise, victims often found such amends insufficient and called on to duels for contentment.[31]

While the common law defences to defamation render some shield to freedom of verbal expression, courts in modern times have recognised that they are time and again insufficient. A true statement cannot be considered to be defamatory, but needing a defendant to establish truth confronts an obstruction to free expression. Evidence decrees are strict, and journalists fear being obliged to disclose their origins. “Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public.” [32]

Pointing out on the conventional defences, a court spelt, “The balance is tilted too far against free communication and the need to protect the efficacious working of representative democracy and government in favour of the protection of individual reputation.”[33] Thus courts have to develop new ways to defend expression in an effort to transfer the equaliser the other way. In current cases, they have brought in new defences or polished old ones.

Conclusion

The present law for Economic loss, Psychiatric injury and wrongful life and Defamation under the Torts imposes too little liability. The present deficiency of any effort to examine the implication of this area of harms in tort law is not in agreement when compared to contract law, as stated by Lord Justice Bingham in Wutts v Morrow.[34] His Lordship’s legal opinion has contributed constitution and inevitability to contractual assertion for mental hurt, even though the affect of the House of Lords’ judgment in Ruxley Electronics and Construction Ltd v Forsyth[35] and the implication of consumer excess opinion[36] have still questionably to be settled.[37] There is no corresponding decision in tort. This is barely astonishing, even though there is no common treatment for these heads amid the different torts. Also it cannot be stated that no principle can be detected giving cohesion and clearness to these heads of damages. Thus we can conclude by stating that the liability under Torts Law under the three heads is too little.

References

1. B Feldthusen, ‘Economic Negligence’ Carswell. 1989.

2. Bussani and others (eds), ‘Pure Economic Loss in Europe’ Cambridge University Press. (Cambridge, 2003).

3. J Cooke, ‘Law of Tort’ 7th Edition. Pearson: (Essex, 2005).

4. A Gregory Abbott Esq. ‘Elements of Libel and Slander’ http://www.abbottlaw. com/defamation.html accessed 24th April 2010.

5. http://www.lse.ac.uk/collections/law/news/libel.pdf retrieved 24th April,2010

6. https://www.lawteacher.net/tort-law/lecture-notes/defamation-lecture.php accessed 24th April,2010

7. CP John Goldberg and others, ‘Tort Law: Responsibilities and Redress’ (Aspen Publishers 2004).

8. CP John Goldberg, ‘The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs’ Yale Law Journal (2005) 524 541.

9. R Kidner, ‘Casebook on Torts’ (9th edn Oxford University Press, Oxford 2006)

10. Markesinis and others, “Tort Law” (5th edn OUP 2003)

11. NJ Mullany and others, ‘Tort Liability for Psychiatric Damage’ (Sydney. Law Book Company 1993)

12. Steven Shavell, ‘Economic Analysis of Accident Law’ (Harvard University Press. 1987)

13. J Stapleton, ‘In Restraint of Tort’ in P Birks (ed), (1994) 2 TFL 94.

14. Wright, ‘Tort Law and Human Right.’ (Hart Publishing 2001).

[1] Black’s Law Dictionary 1526 (8th ed. 2004). The Latin root of “tort” refers to conduct that is twisted (i.e., lacking in rectitude) while also twisting (i.e., interfering with the rights of others).

[2] Medieval English law referred to torts as “trespasses,” using the term in its biblical sense to refer to transgressions by one against another.

[3] For example, many arguments that can defeat a tort action do so by establishing that the defendant’s conduct was not a wrong or not a wrong to the plaintiff. e.g., Florida Publ’g Co. v. Fletcher, 340 So.2d 914, 916 (Fla. 1976) (stating that consent is a defence to an action for trespass).

[4] Mogul Steamship Co. Ltd. v. McGregor, Gow & Co. (1889) LR 23 QBD 598

[5] 14 per Bowen LJ, (1889) LR 23 QBD 598, 614

[6] Taff Vale Railway v. Amalgamated Society of Railway Servants [1901] AC 426

[7] Quinn v. Leatham [1901] AC 495

[8] Torquay Hotels Ltd v. Cousins [1968]

[9] Rookes v. Barnard [1964] AC 1129

[10] The author asserts that the “remoteness” of the damage from the initial conduct of the defendant is the characteristic and endemic issue which distinguishes pure economic loss, as a practical matter, from cases involving physical damage.

[11] Kinsman Transit Co. v. City of Buffalo, 388 F.2d 821, 823 (2d Cir. 1968) (“Here, as elsewhere, the answer must be that courts have some expertise in performing their almost daily task of distinguishing the honest from the collusive or fraudulent claim.”).

[12] Articles in The Times 29 March 1995, The Guardian 29 March 1995, The Independent29 March 1995 and the Daily Mail 30 March 1995. The coverage of the Court of Appeal’s decision in favour of the police officers in Frost v Chief Constable of South Yorkshire Police.

[13] Adcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. This was a test case brought by 16 relatives and friends of some of the victims. All but one were ultimately unsuccessful

[14] Frost v Chief Constable of South Yorkshire Police [1997] 3 WLR 1194. The Court of Appeal (by a majority) found in favour of all but one of the officers.

[15] Frost v Chief Constable of South Yorkshire Police [1997] 3 WLR 1194, 1220, per Henry LJ.

[16] An editorial, “Putting safety first – at last”, published in The Guardian on 5 June 1996 suggested that the relatives of Hillsborough victims had every reason to feel affronted following substantial out-of-court settlements in favour of police who entered the affected pens, when the relatives had received only “paltry sums” or nothing at all.

[17] An early day motion was signed by several Members of the House of Commons stating that “this House recognises the compensation awards made to police officers traumatised in the Hillsborough disaster; and believes that natural justice demands similar levels of compensation for traumatised family members of those killed and injured in the Hillsborough tragedy”: EDM 121 1996/1997.

[18] N J Mullany and P R Handford, “Hillsborough Replayed” (1997) 113 LQR 410, 417:

“Lurking not far beneath the surface of the judgments [in Frost] is uneasiness that if it is acceptable to compensate the police officers as a result of their involvement at Hillsborough, the spectators whose claims were denied by the House of Lords in Alcock have had a rough deal. … The only satisfactory solution is to admit that the House of Lords’ decision in Alcock brought about the wrong result and that the law should move much closer to the first instance decision of Hidden J in that case.”

[19] Page v Smith [1996] AC 155; Page v Smith (No 2) [1996] 1 WLR 855

[20] [1996] AC 155

[21] [1997] 3 WLR 1194

[22] In Rookes v Barncird [964]AC I 129, for example, Lord Devlin, in the context of aggravated damages. refers to the claimant’s proper feelings of pride and dignity (at 122 I ) , humiliation (at 1226, 1233), distress (at 1233) and insult or pain (at 123 I).

[23] McLoughlin v O’Brian [1983] 1 AC 410, 431

[24] Hinz v Berry [1970] 2 QB 40, 42, per Lord Denning MR.

[25] Hinz v Berry [1970] 2 QB 40

[26] Brice v Brown [1984] 1 All ER 997.8

[27] Page v Smith [1996] AC 155, 179, per Lord Jauncey.

[28] [2001] AC 127, 201

[29] 1965 2 All ER 523:

[30] Die Spoorbond v. South African Railways, 1946 (2) SALR 999, 1010 (CC) (S. Afr.)

[31] Kenneth Campbell, The Origins and Development of a Philosophy for the Protection of Opinion in Defamation Law 39 (1990).

[32] Derbyshire County Council v. Times Newspapers Ltd, 1 All E.R. 1011, 1018 (H.L 1993) (U.K.). See also New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) (“Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.”).

[33] Theophanous, 124 A.L.R. at 20.

[34] [199 1] 1 WLR 142 1 at 1445. See also Bliss v South East Thmnes Regional Health Autlioriy [ 1987] ICR 700 and. more generally, McGregor, paras 92-106 and P Giliker (1997) 141 SJ 998 and [ 19981 Bus LR 86 for more detailed examination of case law.

[35] [1996] 1 AC 344, HL; [I9941 1 WLR 650. CA. Note J O’Sullivan [1995] CLJ 496 and ch 1 in F Rose (ed) Failure ojcontracts (Oxford: Hart, 1 997), G McMeel [1995] LMCLQ 456; J Poole (1996) 59 MLR 272; B Coote [I9971 CLJ 537. Followed by the Court of Appeal in Freeman v Niroornand (1996) 52 Con LR 1 16.

[36] The concept of the ‘consumer surplus’ is explained in the well-known article D Hams, A Ogus and J Philips ‘Contract Remedies and the Consumer Surplus’ (1 979) 95 LQR 58 1.

[37] McGregor, above n 1, para 104 suggests that the courts will only resort to ‘Ruxley type’ damages when it is not prepared to award the cost of reinaatement and the diminution in value suffered by the claimant is limited to nominal damages. This is no case law at present to suggest otherwise.