1 Introduction: Torts and Tort Law 1.1 What is a tort? 1 1.2 The relationship between tort law and other legal categories 4 1.2.1 Tort law and criminal law 4 1.2.2 Tort law and contract law 6 1.2.2.1 The contract fallacy 7 1.2.2.2 Concurrent liability 9 1.2.3 Tort law and the law of restitution 10 1.2.4 Tort law and the law of trusts 10 1.2.5 Tort law and property law 11 1.3 Standards of liability in tort law 11 1.4 Sources of Australian tort law 13 1.5 Tort law at the beginning of the twenty-fi rst century 16 1.6 Tort theory 20 1.6.1 Economic analysis 21 1.6.2 Corrective justice theory 22 1.6.3 Critical theory 23 1.6.4 Theory and debates about tort reform 24 1.7 Alternatives to the tort system 25 1.1 What is a tort? Unlike many legal terms (such as ‘property’ and ‘contract’), ‘tort’ has no life outside the law. And yet rules and principles of tort law are relevant to a wide range of common phenomena as diverse as industrial disputes, libellous newspaper articles, road accidents, noisy neighbours, dangerous pharmaceutical drugs, vicious dogs, and so on. The word ‘tort’ is derived, through French, from a Latin word commonly translated as ‘wrong’. However, this is an unsatisfactory translation because on the one hand, not all conduct that the law considers wrongful is tortious and on the other, not all torts consist of conduct that would colloquially be called wrongful. The law of torts is part of private law, of which other parts are the law of property, the law of contract, and so on. Private law is contrasted with public law. Oxford University Press Sample Chapter1 BAR_LTA5e_01_PPS.indd 1 30/09/11 1:30 PM 2 • The Law of Torts in Australia Public law is concerned with the institutions and powers of government and with relations and interactions between government and citizen. Private law regulates relations and interactions between citizen and citizen. However, these bald statements must immediately be qualified by observing that torts can also be committed by government against citizens, and vice versa; and as we will see in Chapter 11, the rules of the (private) law of torts may be modified in their application to such situations. Some lawyers use the phrase ‘the law of torts’ and the term ‘tort law’ (or ‘the law of tort’) interchangeably. Others, however, think there is a significant difference between them. To understand their argument we need some history. The law is made up of a complex mass of rules and principles. To make it easier to understand and use, lawyers divide the law into ‘branches’ or ‘areas’. The ‘law of torts’, or ‘tort law’ is one of these. The technical name for this practice of division and categorisation is ‘taxonomy’. There are various ways of dividing up the law. English law (from which Australian law is derived) was originally organised along ‘formulary’ lines. At the heart of the ‘formulary system’ were ‘writs’. These were the documents by which court actions were begun. A writ has been helpfully compared to ‘a modern administrative form, with preprinted sets of words corresponding to the claim they are used to make, and dotted lines the applicant will fill in to explain the particulars of his case’.1 Lawyers thought of the particulars of the case (i.e. its underlying substance) in terms of ‘causes of action’—nuisance, libel, trespass and so on.2 The formulary system was abolished in England in the nineteenth century and this development encouraged fresh thinking about the principles underlying the various causes of action. The process is well illustrated by the development of tort liability for negligence. The concept of negligent conduct as a basis of liability began to emerge early in the nineteenth century (before the abolition of the formulary system) as a response to new social problems such as increasing numbers of road accidents. Later in the century, some jurists (including early textbook writers) argued for recognition of a general principle of liability for negligent conduct; others thought that liability for negligence should be understood in terms of various discrete relationships, such as doctor and patient, occupier and visitor, carrier and passenger, and various different activities. That category-based approach had more in common with older ways of thinking than the ‘principle-based’ approach. In fact, both perspectives are still reflected in modern law. What we call ‘torts’— defamation, deceit, trespass, nuisance and so on—are the modern counterparts of the old causes of action. It is this that leads some to say that we have a law of torts (plural), not a law of tort (singular). At the same time, it is not inaccurate to say that the modern law embodies a general principle of liability for negligent conduct. Ironically, however, the prime manifestation of this principle is the co-called ‘tort’ of negligence. The development of this modern ‘cause of action’ post-dated the abolition of the formulary 1. E Descheemaeker, The Division of Wrongs: A Historical Comparative Study, Oxford University Press, Oxford, 2009, p 191. 2. M Lobban, The Oxford History of the Laws of England, Volume XII, Oxford University Press, Oxford, 2010, p 888. Oxford University Press Sample Chapter BAR_LTA5e_01_PPS.indd 2 30/09/11 1:30 PM Chapter 1 Introduction: Torts and Tort Law • 3 system and culminated only in 1932.3 Furthermore, the modern law contains no general principle of liability for intentionally causing harm, and no general principle governing when liability, regardless of intention or negligence (‘strict liability’), can arise. Nevertheless, the choice between ‘torts’ and ‘tort’ is of little practical significance, and in this book we use the terms ‘law of torts’ and ‘tort law’ interchangeably. As a result of creation of the tort of negligence, the word ‘negligence’ has two meanings in modern tort law. In one sense, it is effectively synonymous with ‘carelessness’. Negligence in this sense is (of course) an element of the tort of negligence, but it is also an element of certain other torts such as nuisance (see 5.1.8 and 5.2.7). In its other sense, ‘negligence’ is the name of a tort of which the main elements (besides carelessness) are a duty of care and damage caused by the tortfeasor’s4 conduct. Another issue about which early textbook writers disagreed was whether it was better to organise the law around ‘protected interests’ or ‘standards of liability’ (the latter turning on whether the relevant conduct was ‘intentional’, ‘negligent’ or without ‘fault’). Both organisational criteria are reflected in the law. For instance the torts of trespass to land and defamation are conceptualised as protecting an interest (the right to possess and reputation respectively), whereas the tort of deceit focuses on a type of conduct—i.e. ‘fraud’. There are, we might say, both ‘interest-based’ and ‘conduct-based’ torts. Negligence might seem to be a quintessentially conduct-based tort. However, the ‘duty of care’ element of the tort reflects tort law’s split personality. One the one hand, the duty element shows that the tort of negligence focuses on conduct; but on the other hand, one of its functions is to specify the interests that are protected by the tort of negligence—in other words, those interests, negligent damaging of which can attract liability. The result of all this is that taxonomically, tort law is a mess, and the way lawyers think about this area of the law can be very confusing. This confusion is inevitably reflected in the organisation of the material in this book, one aim of which is to explain to the reader the messy way in which lawyers think.5 A result of the taxonomic messiness of tort law is that one and the same act may constitute more than one tort because it satisfies the ‘elements’ of more than one tort (i.e. the requirements for being awarded a remedy). However, the problems caused by the messiness of legal categories extend further than this. For instance torts are distinguished from crimes—in other words, crimes and torts belong to different legal categories. However, the categories of tort and crime are not mutually exclusive. Some crimes are also torts: physically attacking someone, for example, or stealing their property. More importantly for our purposes, torts are also distinguished from breaches of contract and breaches of trust; and some breaches of contract, for instance, are also torts. Where conduct constitutes more than one tort or falls into more than one legal category, it is possible that a remedy may be more easily obtained, or a better remedy 3. Donoghue v Stevenson [1932] AC 562. 4. As people who commit torts are called. 5. This is meant as an observation more than a criticism. Life is messy, and the law reflects life. Oxford University Press Sample Chapter BAR_LTA5e_01_PPS.indd 3 30/09/11 1:30 PM 4 • The Law of Torts in Australia may be obtained, by treating the act as being one tort rather than another or as falling into one legal category rather than another. To some extent, Australian law allows the plaintiff a free choice as to how to treat the conduct—for example as one tort rather than another, or as a tort rather than a breach of contract. Independently of any judgment about whether such ‘concurrence’ of causes of action is desirable or not, it certainly increases the law’s complexity. For instance in some contexts6 it may be necessary to decide whether particular conduct constitutes ‘a tort’ (as opposed to any particular tort).