1.

NATURE AND FUNCTIONS OF THE LAW OF TORT

A. Aims of the Law of Tort
Numerous attempts have been made to define a “tort” with varying 1–001
degrees of lack of success. We will begin, therefore, with a general
description rather than with a definition and must be content for the
moment to sacrifice accuracy and completeness for the sake of
simplicity. Having given a very broad description of the role of the
law of tort we can then turn to the problem of formal definition,
and finally look at the relationship of the tort system with certain
other legal and social institutions pursuing similar ends.
It is not possible to assign any one aim to the law of tort, which 1–002
is not surprising when one considers that the subject comprehends
situations as disparate as A carelessly running B down in the street;
C calling D a thief; E giving bad investment advice to F; G failing
to diagnose H’s dyslexia at school; and I selling J’s car when he has
no authority to do so. At a very general level, however, we may say
that tort law is concerned with allocating responsibility for certain
types of losses. It is obvious that in any society of people living
together numerous conflicts of interest will arise and the actions of
one person or group of persons will from time to time cause or
threaten damage to others. This damage may take many forms—
injury to the person, damage to physical property, damage to
financial interests, injury to reputation and so on—and whenever a
person suffers damage at the hands of another person, especially if
it is serious, he is inclined to look to the law for redress. If the law
grants redress, some person or group of persons will be required to
do or refrain from doing something. This redress may take various
forms. In the great majority of tort actions the claimant is seeking
monetary compensation (damages) for the injury he has suffered,
and this fact strongly emphasises the function of tort in allocating
or redistributing loss. In many cases, however, the claimant is
seeking an injunction to prevent the occurrence of harm in the
future and in this area the direct “preventive” function of tort
predominates.1 An injunction is usually the primary remedy sought,
for example, in cases of private nuisance (wrongful interference
with the enjoyment of land) and the so-called “economic torts”
such as inducing breach of contract. This is not because damages
are unavailable (they clearly are) but because the defendant is
engaged in a continuing act and the damage suffered by the
claimant may not yet have occurred or may be suffered over a long
period of time. Even when the claim is for damages in respect of a
completed wrong, the role of tort cannot only be squared with the
idea of compensation. Thus, there are some situations in which the
law imposes upon the defendant an obligation to disgorge the
profits he has made from his wrongdoing, whether or not the
claimant has suffered any loss. In a few situations, where
exemplary damages are awarded, the idea of compensation is
dropped in favour of overt punishment; but much more frequently
there are substantial awards of damages (nominally compensatory)
for matters like injury to reputation and interference with liberty,
which one cannot even begin to quantify in mathematical terms. A
couple of nights of wrongful detention in the police station may
attract more damages than a broken arm, and a libel in a national
newspaper more than the loss of that arm. In these cases the law is
performing a complex function incorporating vindication,
deterrence and appeasement.2 Some tort actions (for example, some
claims for trespass to land) may be brought mainly as a method of
obtaining a declaration of rights, notwithstanding the availability
under modern procedure of a specific remedy of that nature.
Associated with this is what a Canadian judge, Linden J, has called
the “Ombudsman” function of tort,3 under which those responsible
for losses (typically corporations whose activities cause major
disasters) may be called upon to answer in public for their
activities. Now it is clear that it is not a function of tort law to
provide an alternative route to a public inquiry but there are
certainly cases which come close to that. In Ashley v Chief
Constable of Sussex Police4 A had been shot dead by a police
officer in a drugs raid. The officer was acquitted on a charge of
murder and the Chief Constable conceded liability for negligence in
a civil claim by A’s family and estate. The majority of the House of
Lords rejected an application to strike out as an abuse of process
the alternative cause of action based upon trespass to the person
even though it was accepted that in the circumstances no greater
damages could be obtained under this action than under that on
which the defendants were prepared to concede liability. It was a
fair inference that the family’s purpose was to obtain a finding that
the deceased had not merely been the victim of organisational
negligence in the planning of the raid but that he had been
unlawfully killed, but they had pleaded a valid cause of action and
the fact that they would recover no more damages for it did not
mean that they had no legitimate interest in pressing it. As Lord
Rodger observed: “the very fact that the chief constable remains
understandably concerned to defend the claim of [trespass] tends to
confirm that the claimants may remain, equally understandably,
concerned to pursue that claim.”5 There have also been cases in
which a civil claim has been brought in order to provoke the
prosecuting authorities into acting.6 It is perhaps unkind to call tort
the dustbin of the law of obligations, but it is certainly the great
residuary category. No one theory explains the whole of the law.
B. Definition of Tortious Liability
Winfield’s definition of tort was as follows: “Tortious liability 1–003
arises from the breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action
for unliquidated damages.” In framing this definition Winfield was
not seeking to indicate what conduct is and what is not sufficient to
involve a person in tortious liability, but merely to distinguish tort
from certain other branches of law.7 As we shall see, it cannot be
accepted as entirely accurate but it has the merit of brevity and
contains elements which deserve continuing emphasis. It is true
that a cause of action in modern law is merely a factual situation
the existence of which enables the claimant to obtain a remedy
from the court8 so he is certainly not in the position he was in 200
years ago of having to choose the right “form of action” to fit his
claim. Nonetheless, even the comparatively lax modern style of
pleading requires the claimant to set out the elements of the claim
which he seeks to establish, and in practice this will nearly always
involve identifying the tort or other cause of action on which he
relies. The third element of Winfield’s definition (which is
convenient to mention first) is that the breach of duty is redressable
by an action for unliquidated damages. A claim is said to be
“liquidated” when it is for a fixed, inelastic sum9 or one which is
calculable by the mere process of arithmetic.10 It is not, of course, a
sufficient test of tort liability that the remedy is unliquidated
damages—for these are also the primary remedy for breach of
contract—but it seems to be a necessary one. If the claimant cannot
recover unliquidated damages then whatever claim he may have, it
is not for tort.
Winfield would now be forced to retreat from the claim that if a
duty is towards a specific person or specific persons it cannot arise
from tort,11 but there is probably still some substance in his
contention that the element of generality was an important factor in
the definition. It is arguable that everything depends upon the level
of abstraction at which the duty is expressed. It can be truly stated
that by virtue of the law of tort D is under a duty not to convert to
his own use the goods of anybody else, while D’s contractual duty
to deliver goods which D has sold is owed only to the person to
whom D has sold them but this is to compare two statements at
different levels. Just as D has a general duty not to commit the tort
of conversion, so D has a general duty not to commit breaches of
contract. If, on the other hand, we descend to the particular, then
just as D’s duty to deliver certain goods is owed only to their buyer,
so also D’s duty not to convert certain goods to D’s own use is
owed only to the person in possession, or having the immediate
right to possession, of them.
C. Tort and Contract
Overlap between tort and contract. From a practical lawyer’s 1–004
point of view there may be a considerable overlap in any factual
situation between the law of contract and the law of tort. For
example, a claim for damages arising from a defective product may
involve a complex web of issues under the Sale of Goods Act 1979,
the law of misrepresentation and collateral warranty, the tort of
negligence, the Consumer Protection Act 1987 and a chain of
contractual indemnities among retailer, middleman and
manufacturer.12 It is unlikely that any legal system can ever cut
loose from general conceptual classifications such as “contract”
and “tort” (at any rate they seem to be found everywhere) but the
student will quickly come to recognise that the boundary must
sometimes be crossed in the solution of a problem. It has long been
trite law that a defendant may be liable on the same facts in
contract to A and in tort to B (notwithstanding privity of
contract);13 it is now, after a period of uncertainty, also clearly
established that there may be concurrent contractual and tortious
liability to the same claimant, though he may not, of course,
recover damages twice over. However, before we examine these
propositions further we must make some attempt at formally
distinguishing the two heads of liability.
Source of the duty. It was Winfield’s view that tortious duties 1–005
exist by virtue of the law itself and are not dependent upon the
agreement or consent of the persons subjected to them. D is under a
duty not to assault C, not to slander C and not to trespass on C’s
land because the law says that D is under such a duty and not
because D has agreed with C to undertake such a duty. Winfield
therefore considered that tortious liability could for this reason be
distinguished from contractual liability and from liability on
bailment, neither of which can exist independently of the parties, or
at least of the defendant’s agreement or consent. There are,
however, several instances of what is undoubtedly tortious liability
for the existence of which some prior consent, undertaking or
assumption of responsibility on the part of the defendant is
essential. The liability of the occupier of premises to his visitor, for
example, which is now governed by the Occupiers’ Liability Act
1957, is based upon breach of a duty of care owed by the occupier
to persons whom he has permitted to enter upon his premises. The
duty owed to trespassers, i.e. persons who enter without his
consent, is not the same.14 Again, the duty of care owed by a person
who gives gratuitous advice upon a serious occasion is, doubtless, a
tortious one,15 but its existence is dependent upon the adviser’s
agreement to give the advice, if not necessarily upon his agreement
to accept legal responsibility for it. Still more difficult is the fact
that in some situations an undertaking (whether or not by contract)
by A to B to perform a service, the object of which is to confer a
benefit upon C, may give rise to liability in tort to C.16 Not only is
it untrue that all tortious duties arise independently of the will of
the defendant, but it is equally not true that contractual duties are
always dependent upon that will. Apart from the obvious point that
the duty not to break one’s contracts is itself a duty imposed by the
law, it is also the case that contractual liability may exist even in
the absence of any true consent between the parties. Whether or not
there is a contract normally depends upon the outward
manifestations of agreement by the parties, not on their subjective
states of mind.17
Content of the duty. Another mode of differentiation between 1–006
tortious and contractual liability is to be found in the proposition
that in tort the content of the duties is fixed by the law whereas the
content of contractual duties is fixed by the contract itself. If D
consents to C’s entry upon his premises then the duty which D
owes to C is the duty fixed by the Occupiers’ Liability Act 1957,
i.e. by the law itself, but whether, for example, D’s duty is to
deliver to C 10 or 20 tons of coal can only be discovered from the
contract between C and D. Even this distinction, however, is by no
means always valid, for today in many cases the content of
contractual duties is also fixed by the law. Statute provides, for
example, that certain quite specific obligations shall be contained in
contracts for the sale or hire-purchase of goods and cannot be
excluded;18 and it is now no longer true, as perhaps it once was,
that implied terms in a contract, in the absence of a statutory rule,
are always to be based upon the presumed intention of the parties.19
Conversely, there are tortious duties which are subject to variation
by agreement, whether or not that agreement amounts in law to a
contract between the parties.20
Aims of contract and tort. Another basis for distinguishing 1–007
between contract and tort may be sought in the aims of the two
heads of liability. Arguably, the “core” of contract is the idea of
enforcing promises, whereas tort aims principally at the prevention
or compensation of harms, and this difference of function has two
principal consequences. First, that a mere failure to act will not
usually be actionable in tort, for that would be to set at naught the
rule that even a positive promise will not give rise to legal liability
unless it is intended as legally binding and supported by
consideration or the formality of a deed. The second consequence is
that damages cannot be claimed in tort for a “loss of expectation”.
Damages in contract put the claimant in the position he would have
been in had the contract been performed, whereas damages in tort
put him in the position he would have been in had the tort not been
committed. However, this basis for distinguishing between contract
and tort is imperfect. For one thing, failure to receive the benefits
promised under a contract might be regarded as “harm”.21
Furthermore, there are instances where liability in tort arises for
failing to confer a benefit on others in the sense of failing to protect
their safety. Some of these are of very long standing, for example,
the duty of an occupier to take steps to ensure that his visitors are
not harmed by dangers on his land, even if those are not of his
making. As to damages, the law of contract puts the claimant in the
position he would have been entitled to occupy (subject to the law
of remoteness) as a result of the transaction agreed between the
parties. While it is clear that (assuming the claim in tort to arise
from some transaction between the parties) tort does not do that,
the distinction is less fundamental than might appear. If a surgeon
operates negligently on a curable condition and leaves the condition
incurable, the patient recovers damages on the basis that with
careful surgery he would have been cured; if a solicitor negligently
fails to carry out X’s instructions to make a will in favour of C, C
can recover as damages the value of the lost legacy;22 and if the
seller of property fraudulently23 induces the claimant to buy it,
while the claimant cannot recover as damages the profits he would
have made if the representation had been true, he may be able to
recover the profits he would have earned by laying out his money
elsewhere.24