Oxbridge Notes | Laws 301 Lecture Notes Part 1

“A tort is a wrongful act or omission, for which compensation or other remedy can be awarded to the claimant (or the person aggrieved) against the defendant (or tortfeasor).” – Rachael Mulheron Principles of Tort Law Cambridge: Cambridge University Press, 2016

Torts define people’s rights by providing a mechanism for protecting rights and securing compensation for infringement of rights
Wrongful – acts or omissions deemed wrongful by society
Can be an action, but sometimes can be an omission (from a special relationship, duty of care)
Compensatory role focused on negligence tort, but other remedies available to protect many interests against harmful conduct
Claimant English, Plaintiff NZ
33 torts identified in England, more in NZ – England does not recognise privacy, but NZ does

“The law of torts hovers over virtually every activity of modern society. The driver of every automobile on our highways, the pilot of every aeroplane in the sky, and the captain of every ship plying our waters must abide by the standards of tort law… Tort law, therefore, is a subject of abiding concern not only to the judges and lawyers who must administer it, but also the public at large, whose every move is regulated by it.”

Every move is regulated by the law of torts – e.g. responsibility to use the skills of a reasonable lawyer when advising clients

“The law of torts concerns the obligations of persons living in a crowded society to respect the safety, property, and personality of their neighbours, both as an a priori matter and as a duty to compensate for wrongfully caused harm, ex post. Tort law … involves questions of how people should treat one another and the rules of proper behaviour that society imposes on each citizen for avoiding improper harm to others... [Both] fields, tort law and philosophy, involve a search for norms of proper behaviour, norms that may be used for evaluating the propriety or wrongfulness of particular instances of harmful conduct.”

Torts create a normative framework, don’t have to look outside of torts to measure whether this is good
Mediate between competing rights and interests

Overlap with criminal law – regulating behaviour

“A tort is a wrong recognised by law. But torts are not the only wrongs recognised by law. […] The great cleavage is between criminal wrongs, variously called crimes or offences, which may result in a prosecution and punishment, and civil wrongs which lead not to a criminal prosecution but to a civil proceeding for damages or other private redress.”

Same conduct can fit on both sides of public and private law – torts are private law
Both try to establish community standards, providing deterrence
Both impose obligations of universal application
e.g Trespass was originally a crime, contrary to the King’s interest

Lecture 2: (27/02/20)

Although primary function of tort law is to protect private rights and interests, there may be circumstances where damage to individuals is a violation of public rights

Public (constitutional + administrative) law – concerned with regulating behaviour of public bodies
Public nuisance is a crime – person who has suffered actual damage beyond that inflicted on the public generally has a claim in tort
Negligence – public bodies not immune to ordinary negligence claims (council negligently issues a certificate for building compliance, building is leaky)

Tort law operates in the shadow of public (administrative) law – negligence should not undermine restrictions of public law remedies.

Decisions that survive a public law attack should not be attacked again via tort law
If the reason is a strategic decision made by a public body, tort law will generally not get involved
The consequences of an operational public decision can be challenged by tort law

Bell had been released on bail, was not to go to place of previous employment. Bell breached this term and shot people.

Concern was that the probation office was not doing its job
Case did not go to trial, but if the probation officer failed to monitor Bell appropriately, tort law could intervene
However, if it was a head office budgetary issue, this falls under public law.

(Private) Law of Obligations – Private law is seen to have three elements:

Contract
Equity
Restitution or unjust enrichment

Contract law involves reciprocal promises voluntarily taken by the parties to create enforceable obligations.

In this regard, tort and contract have a degree of convergence – lawyers voluntarily taking on a duty of reasonable care when giving legal advice

For at least a hundred years … common lawyers...

Laws 301 Lecture Notes Part 1 - Tort Law

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