Episode 24 – Torts, Snails and Ginger Beer!

TRANSCRIPT

STEPHEN BOTTOMLEY

Imagine that you are shopping at your local supermarket. You slip on a spill that has not been cleaned up and as a consequence you break your ankle.

STEPHEN PARKER

Or, imagine that a business competitor says in an online blog, and without any basis, that you are dishonest and not to be trusted, and as a consequence you lose customers.

STEPHEN BOTTOMLEY

Or, your neighbour empties a drum of toxic chemicals on their property, right next to the boundary fence and it seeps onto your property, killing your plants and endangering your health.

STEPHEN PARKER

Or you are admitted to hospital to have a hip replacement, but the surgeon mistakenly removes your kidney instead.

STEPHEN BOTTOMLEY

Or a group of avid birdwatchers turns up on your property unannounced, trampling your plants so that they can observe a rare species of duck that is floating in your birdbath.

STEPHEN PARKER

It can be a hard life, and in any of these cases, you would want to be compensated by the persons responsible for the injury or loss you have suffered.  To do that, you would turn to the law of torts, which is the topic of this episode.

STEPHEN BOTTOMLEY

Tort law covers a variety of legal actions, including defamation, trespass and – the biggie – negligence.  The details in each of these areas of tort law vary, but what they have in common is that they provide a means to obtain compensation for loss in situations where the injured person and the injurer (the tortfeasor) might not be in a contract or other legal relationship with each other that may have provided the basis for a claim.

STEPHEN PARKER

Lawyers disagree on whether there is a single body of law called ‘tort law’, or whether it is instead ‘the law of torts’ that is, a collection of individual legal actions, such as defamation, trespass etc.  We will sidestep this debate and use tort law and the law of torts interchangeably.

STEPHEN BOTTOMLEY

The word ‘tort’ comes from the Latin word ‘tortum’, meaning ‘wrong’.  It is not to be confused with the word ‘torte’ – spelled with an ‘e’ on the end – which is a German word for a type of cake, and which is far more digestible than the law of torts. [SP: was that a Bottomley joke?  SB:  yes! an oldie, but a goldie]

STEPHEN PARKER

The origins of modern tort law stretch back many centuries. It has played an important role in the development of modern capitalist societies that are characterised by myriad interactions between strangers, any of which can give rise to physical, financial, or reputational harm.   

STEPHEN BOTTOMLEY

Tort law falls within the general category of civil actions, in contrast to criminal law.  Whereas criminal law cases pit the state against an accused person, civil cases involve a legal fight between one individual and another. In this way, tort law is like contract law. 

STEPHEN PARKER

But tort and contract differ in important ways.  We will see in a future episode that a contract dispute arises when one party to a contract breaches or fails to uphold their obligations as set out in the contract.  In a contract case, it is the parties to the contract who have determined the obligations and duties that each must perform.  In contrast, the duties in tort law are imposed by the law.  These duties are determined by decades of judicial decisions and precedent.

STEPHEN BOTTOMLEY

Contract law and tort law also differ in the goal that they seek to achieve when compensation is awarded to the injured party.  In a contract case, the court is being asked to look into the future and think of the situation in which the plaintiff would have been if the contract had been performed as expected, and to award a sum of damages that achieves that outcome.   In a tort case, the court looks to the past.  It asks ‘what was the plaintiff’s situation before the tort occurred, and what amount of damages should be awarded to put them back in that situation, as far as money can do this?’.

STEPHEN PARKER

But having said all that, there are areas where the boundaries between tort law, criminal law and contract get blurry.  For example, it is possible in a tort case for the court to order that the victim will be paid what are called ‘punitive’ (or ‘exemplary’) damages. This can happen when the defendant’s wrongful conduct is so reprehensible that, in addition to compensating the plaintiff, the court decides that the defendant should be financially punished, to discourage them from such action in the future. And some breaches of contract can be treated as a torts, for example where a solicitor is negligent in dealing with a client’s case.

STEPHEN BOTTOMLEY

As we’ve said, in addition to being a means for obtaining compensation for injury, tort law also sets duties and standards of behaviour that can guide the behaviour of individuals towards others, as they interact in an increasingly complex society.  These duties and standards apply broadly, to neighbours, visitors to your home, other road-users, and people with whom you have no direct contact.

We can’t cover all areas of tort law in this episode. Instead, to give an idea of how tort law works, we’ll talk about two: negligence and trespass.

STEPHEN PARKER

In law, the word ‘negligence’ applies to the actions of a person who fails to exercise the duty of care that they owe to another person. The modern law of negligence really kicked off in the 1932 English decision of the House of Lords in a case called Donoghue v Stevenson. This case has since been seared into the brains of every first year law student in the English common law world.  It also features in our celebrated song, The Second Semester Blues, which has yet to make it onto any Spotify list.

STEPHEN BOTTOMLEY

The case is sometimes called ‘the snail in the bottle case’.  Mrs Donoghue and a friend were in a café in a town in Scotland. Her friend purchased bottle of ginger beer for them both to drink.  The bottle was sealed with a metal cap and was made of opaque glass, so the contents could not be seen. The bottle was opened, and Mrs Donoghue drank a glass of the ginger beer.  Her friend then poured the remainder of the bottle into the glass when what appeared to be a decomposed snail floated out of bottle.  On seeing this, Mrs Donoghue suffered shock and illness.  She brought an action in damages against the manufacturer of the bottled ginger beer, Mr Stevenson, for £500.  In today’s terms, that would be around £42,000.

STEPHEN PARKER

Mrs Donoghue couldn’t sue for breach of contract, because she hadn’t purchased the bottle, and even if she had been the customer, the contract was with the café owner, who had no way of knowing about the contents of the bottle.  The case therefore raised a question which is unremarkable in today’s world of consumer protections: does the manufacturer of a product owe a duty of care to the ultimate consumer of the product?

STEPHEN BOTTOMLEY

The case eventually reached the House of Lords.  Three out of the five Law Lords held in favour of Mrs Donoghue. The crucial judgment was delivered by Lord Atkin.  In an often-repeated passage he said: ‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour … You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’

Lord Atkin then asked, ‘Who, then, in law, is my neighbour? The answer seems to be–persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’

STEPHEN PARKER

From this judicial statement, the modern law of negligence developed very quickly, spreading well beyond the duty owed by manufacturers to consumers to cover all aspects of social and commercial life. Entire law courses and very thick textbooks have been devoted to exploring all of the elements of this duty, but we will spare our listeners.

One point is worth noting though. Although negligence law talks of a duty of care owed to others, it is a negative duty – it is an obligation not to harm others.  In English and Australian tort law there is no positive duty to care for, or come to the aid of others, unless there is some pre-existing legal relationship (such as parent and child).  

STEPHEN BOTTOMLEY

Eventually, the law of negligence also prompted the expansion of the insurance industry, as potential tortfeasors – the word used to describe the person who commits a tort –sought to protect themselves from the financial consequences of any breach of their duty of care. Note, though, that the use of insurance doesn’t mean that the principles of negligence law are irrelevant.  It just shifts the burden of making the legal arguments on to the insurance company.

STEPHEN PARKER

That raises an important point. Our regular listeners might recall that way back in Episode 6 we talked about access to justice. We noted that legal cases are often marked by a significant power disparity between the two parties, such as corporation versus individual. We referred to the work of US legal academic Marc Galanter who has analysed litigation by categorising the parties as either ‘one-shotters’ or ‘repeat players’.  Negligence cases provide many examples of this, since tort victims are likely to be ‘one shotters’, while the harms are caused by large corporations – the repeat players.  In practice, that corporate parties are successful more often than the merits of their case justifies.

STEPHEN BOTTOMLEY

Now on to trespass. Listeners will likely have seen signs on someone’s property saying ‘Trespassers will be prosecuted’.  This could mean that the occupier of the property will try to get the police to lay criminal charges against anyone who enters the property without permission or proper cause. This is usually a bluff because trespass is only a crime in specific circumstances, such as entering government property, or entering property with the intention of committing a crime.  But it can also mean that that occupier might bring a tort action for trespass against the person.  This is using the word ‘prosecuted’ in a more general sense.

STEPHEN PARKER

The tort of trespass is one of the oldest forms of legal action. Lawyers describe trespass as an ‘action per se’, which means that the plaintiff does not need to prove that they have suffered any loss or damage as a result of the trespass – it is enough to prove that the defendant was physically on the land without permission.  Of course, if the trespasser does cause any damage, they are liable to compensate for that as well. And if they don’t cause any damage, in practical terms the plaintiff will end up out of pocket through legal costs, so it may not be worth suing.

STEPHEN BOTTOMLEY

One of the elements that will need to be established in a trespass to land action is that the defendant had no legal right to be on the land.  The placing of the ‘trespassers will be prosecuted’ sign tells others that they have no implied licence to enter the property.  But a person who is chased onto property to escape a mugging, or who mistakenly wanders onto property that has no obvious boundary markers may not be liable.

STEPHEN PARKER

One of the curious things about the law relating to trespassers is that they might be able to receive compensation if they injure themselves because, for example, they trip over a garden hose.  The law of torts says that the occupier of land owes a duty of care to all people who enter onto their land – whether they are invited or are trespassing – although the duty is not as demanding in relation to trespassers.

STEPHEN BOTTOMLEY

Trespass to land is only one aspect of the tort of trespass.  There is also trespass to goods, such as the unauthorised use of another person’s property, and trespass to the person, which includes civil actions battery, which is the intentional or reckless infliction of unlawful physical contact with another person.  We can see here how tort law and criminal law can overlap, because a battery can give rise to criminal charges or a tort action for damages.

STEPHEN PARKER

So, once again, we finish an episode by noting how fluid the law can be – just like the ginger beer in that bottle [SB was that a Parker joke?  SP no, it was a literary flourish]