Tort - General

Front 1

Henderson v MerrettSyndicates

Back 1

Supremacy of tort over contract - parties can contract out of tort if they wish (Lord Goff)

Front 2

Morgans v Launchberry

Back 2

Duty owed by counsel to court not to discuss insurance position (Megaw LJ)

Front 3

Murphy v Brentwood District Council

Back 3

It is relevant that the loss was insured (Lord Keith)

Front 4

The Nicholas H

Back 4

Reluctant to interfere in complicated maritime insurance world (Lord Steyn)

Front 5

Caparo v Dickman Industries

Back 5

Refused to consider insurance without further information before the court (Bingham LJ)

Front 6

Nettleship v Weston

Back 6

Tortious liability has often ceased to be based on moral blameworthiness (Megaw LJ)

Front 7

Rowling v Takaro Properties Ltd

Back 7

Tort can prevent beneficial conduct, the 'cure may be worse than the disease' - the overkill scenario (Lord Keith)

Front 8

Hill v Chief Constable of West Yorkshire

Back 8

Fear of fostering unduly defensive police conduct

Front 9

R (on the application of Lumba) v Home Secretary

Back 9

£1 damages for false imprisonment, statement of vindicated right

Front 10

Ashley v Chief Constable of Sussex

Back 10

Negligence admitted by police, battery claim for shot son

Front 11

Tomlinson v Congleton Borough Council

Back 11

Fear of the reckless few damaging society more broadly (Lord Hoffmann)

Front 12

Lamb v Camden Borough Council

Back 12

Negligence is ultimately a question of policy (Lord Denning MR)

Front 13

Henderson v Merrett Syndicates

Back 13

Claims in tort and breach of contract can concur

Front 14

Henderson v Merrett Syndicates

Back 14

Almostevery breach of a professional’s contract could be treated as a tort by hisclient

Front 15

Murphy v Brentwood District Council

Back 15

Anns v Merton London Borough Council was not based on established principle, but on new, indeterminate liability (Lord Keith)

Front 16

Caparo v Dickman Industries

Back 16

Fear of a 'limitless vista of uninsurable risk' (Lord Oliver)

Front 17

Caparo v Dickman Industries

Back 17

Lawshould avoid exposing defendants to indeterminate liability towardsindeterminate people for indeterminate amounts of time (Lord Bridge)

Front 18

Hill v Chief Constable of West Yorkshire

Back 18

Mother sues police, not for damages - which she will give to charity - but to create public inquiry

Front 19

Hill v Chief Constable of West Yorkshire

Back 19

A police inquiry is a job for Parliament, not apolitical judges (Lord Templeman)

Front 20

Hill v Chief Constable of West Yorkshire

Back 20

There can be no duty of care on the grounds of public policy (Lord Keith)

Front 21

Ashley v Chief Constable of Sussex

Back 21

House of Lords deeply reluctant to see tort used as an alternative to a public inquiry

Front 22

Tomlinson v Congleton Borough Council

Back 22

Should all trees be cut down lest some youths climb on them and fall? (Lord Hoffmann)

Front 23

Tomlinson v Congleton Borough Council

Back 23

'grey and dull safety regime' (Lord Scott)

Front 24

Tomlinson v Congleton Borough Council

Back 24

Unrestrained blame culture has 'evil consequences' and erodes liberty (Lord Hobhouse)

Front 25

Allen v Flood

Back 25

No liability for intentional economic harm; no general tort of causing harm

Front 26

Quote on the common law

Back 26

'chaos with a full index'

Sir Thomas Holland

Front 27

Ethical view of a tort

Back 27

Cane: an ethical rule of social responsibility

Front 28

Tort and rights

Back 28

Tort is not a law of persons

Front 29

Cohesion of torts

Back 29

Cane: a 'loose federation'

Front 30

striking out claims might breach Article 6 and the right to a fair trial.

Back 30

Osman v UK

Front 31

Strike outs are not ECHR incompatible

Back 31

Z v UK

Front 32

Tort and contract authority

Back 32

Lord Goff, Henderson v Merrett

Tort is the general law

Parties can contract out of it

Front 33

Winfield on tort and contract

Back 33

Tort: obligation fixed in law

Contract: obligation fixed by the parties themselves

Front 34

Markensis and Deakin on tort and contract

Back 34

Flight into tort

Front 35

Claims in tort and contract

Back 35

Henderson v Merrett

Front 36

Remedies

Back 36

• Farnsworth claims that no aspect of a system is more revealing of its theoretical basis than the relief available for breach

Front 37

Exemplary damages

Back 37

Rookes v Barnard

Exemplary damages for : oppressive action by government

Or calculated conduct to profit from a tort - tort doesn't pay

Front 38

Amount of claims fielded by insurer

Back 38

PearsonCommission: 90% of claims fielded by the defendant’s insurer

Front 39

Case I on insurance

Back 39

Morgans v Launchberry: Megaw LJ emphasisedthe duty owed by counsel to the court of not discussing the insurance position

Front 40

Case II on insurance

Back 40

The Nicholas H, Lord Steyn expressed reluctance to interfere with the complex system of loss insurance that existed in the shipping world

Front 41

Case III on insurance

Back 41

BinghamLJ refused to consider insurance in Caparov Dickman Industries without relevant information about insurance marketsbefore the court

ThoughLord Oliver in the same case feared a ‘limitless vista of uninsurable risk’

Front 42

General purpose of tort

Back 42

• Winfield and Jolowicz reduce it to the general idea of allocating responsibility for loss

Front 43

Tort and morals

Back 43

Nettleship v Weston attacked the link between tortiousliability and moral blameworthiness

Megaw LJ: ‘tortiousliability has in many cases ceased to be based on moral blameworthiness’

Front 44

Tort as corrective justice (3)

Back 44

Weinrib

Beever

Coleman

Front 45

Tort holding people publically accountbale

Back 45

Goldbergand Zipursky take the civil recourse view

Front 46

Tort and economics

Back 46

Lawyer-economistscan see the law as a series of incentives to promote economic efficiency

Richardson, leading lawyer-economists, argue that efficiency is only aguideline

Front 47

Fear of paying out

Back 47

Calabresi: fearof paying out in litigation forces the producers of defective products to raisetheir prices until they cannot compete

Front 48

Overkill scenario

Back 48

LordKeith considered this at length in Rowlingv Takaro Properties

‘thecure may be worse than the disease’

Front 49

Percentages of victims getting compensation

Back 49

7% of accident victims get tort compensation, the Pearson Commission

Front 50

Tort and the welfare state

Back 50

lman described in Australia tort as the ‘last outpost of the welfare state’

Front 51

Tort as an ombudsman

Back 51

Canadian judge Linden J

Front 52

Vindication of rights

Back 52

R (on the application of Lumba) v Home Secretary

Front 53

Inquiry

Back 53

Hill v Chief Constable of West Yorkshire

Lord Templeman felt this was a job for Parliament, not for a judge, who cannot go into political matters

Ashley v Chief Constable ofSussex

Tort not be used as alternative to public inquiry

Front 54

Grand idea of tort

Back 54

Linden and B Feldthusen suggest that perhaps tort law is equivalent to a Gothic cathedral

Front 55

Tort and the citizen

Back 55

• Weir feels the milestones of tort law reflect the increased powers of the ordinary citizen

Front 56

Tort and suing

Back 56

Morris: fear of suing culture

Cane: other factors explain increase in litigation

Gorringe v Calderdale, Lord Steyn: must not contribute to a society bent on litigation

Front 57

Tort and liberty

Back 57

Tomlinson v CongletonBorough Council

Lord Hoffmann: ‘foolhardy or reckless few’ - should all tress be cut down?

Lord Scott: a ‘grey and dull safety regime on everyone’

Lord Hobhouse: blame culture has evil consequences on liberty of the citizen

Front 58

Abandon tort

Back 58

Atiyah: replace it with first-party insurance

Front 59

Law from within

Back 59

Weinrib, no policies

Front 60

Law and policy

Back 60

• Burrows emphasises the black letter tradition of private law.o

And criticises ‘law and something else’ movements.

Drawing on non-legal sources.o

Beever and Rickett have gone further.

Arguing that even to acknowledge on policy arguments is to give up on law as an academic discipline.