Introduction

Ali Baba saw 40 thieves depositing some of their loot in a cave. The mouth of the cave was sealed by a door, which would only open if you said ‘Open, Sesame.’ When the forty thieves had gone away, Ali Baba went up to the door, said ‘Open Sesame’, and gained access to the cave. He took away some of the thieves’ treasure. Meanwhile, Jack sold his cow for five beans, which grew into a beanstalk that stretched all the way into the sky. Climbing the beanstalk, he arrived in a strange land occupied by a giant. Jack entered the giant’s castle and stole some of his money.

Torts are magic in the same way as Ali Baba’s ‘Open, Sesame’ and Jack’s five beans were. Torts allow you to gain access to other people’s money. Suppose Vera has suffered some kind of loss as a result of Jeffrey’s doing x. Whether Vera will be entitled to sue Jeffrey for compensation for that loss will normally depend completely on whether Jeffrey committed a tort in relation to Vera by doing x. If he didn’t, then Vera will not normally be entitled to sue Jeffrey for compensation. But if he did, then Vera will normally be entitled to sue Jeffrey (lawyers say, ‘sue Jeffrey in tort’) for enough money to compensate her for the loss that she has suffered.

What is a tort?

So what is a tort – this magic thing that allows you to gain access to other people’s money? To understand what a tort is, you first of all have to understand some quite dry points of legal terminology:

(1) Suppose that the law says that B must not beat A up and it says this in order to protect A’s interests. One shorthand way lawyers have of expressing this is to say that A has a legal right that B not beat him up. Another way lawyers have of expressing this fact about the law is to say that B owes A a legal duty not to beat him up.

(2) So saying that A has a right that B not beat him up, and saying that B owes A a duty not to beat him up, are just two different ways of saying exactly the same thing: that the law says that B must not beat A up and it says this in order to protect A’s interests. (To save words, I won’t insert the word ‘legal’ in front of either the word ‘right’ or ‘duty’ from now on – but it should be understood that it is there.)

(3) Suppose that B does beat A up. In this situation we can either say that B has violated one of A’s rights or we can say that B has breached a duty owed to A. It comes to exactly the same thing. A third way of expressing what has happened here is to say that B has committed a legal wrong in relation to A, or – more simply – that B has wronged A.

We are now in a much better position to understand what a tort is. Someone who commits a tort wrongs someone else. So B will commit a tort in relation to A if she violates one of A’s rights. To put it another, exactly equivalent, way: B will commit a tort in relation to A if she breaches a duty owed to A. (This explains something which puzzles a lot of students who read cases where a claimant has sued a defendant, arguing that the defendant committed a tort in relation to her. If you look at the cases, you’ll find that in some of them – particularly cases which involve the defendant’s beating the claimant up or imprisoning her or invading her privacy – the basis of the defendant’s liability to the claimant is said to be that he violated her rights in acting as he did. However, in other cases – particularly cases which involve the defendant’s carelessly harming the claimant or failing to save the claimant from harm – the basis of the defendant’s liability to the claimant is said to be that he breached a duty (a duty of care) owed to the claimant in acting as he did. But the difference in terminology is just that – simply a difference in terminology. In all cases, the basis of the defendant’s liability to the claimant is always the same: he wronged her.)

It follows from what has just been said that if Vera wants to sue Jeffrey in tort for compensation for the loss she has suffered as a result of Jeffrey’s doing x, she will have to show that Jeffrey’s doing x violated Vera’s rights. To put it another – and exactly equivalent way – she will have to show that Jeffrey breached a duty owed to Vera in doing x. A couple of cases help to make this point.

The case of Bradford Corporation v Pickles [1895] AC 587 concerned a landowner called Mr Pickles. Water flowing underneath his land would eventually find its way into reservoirs run by the Bradford Corporation, which supplied the town of Bradford with water. Pickles intercepted the water flowing underneath his land and stopped it flowing into the Bradford Corporation’s waters. It is not clear why he did this. Either he wanted to sell his land and he thought that cutting off the water flowing into the reservoirs would give the Bradford Corporation an incentive to buy his land. Or he wanted to get the Bradford Corporation to pay him a yearly fee for allowing water to flow under his land and into its reservoirs. Either way, Pickles was hardly acting in a very public-spirited way when he did what he did. Bradford Corporation sued Pickles in tort. Their claim failed. Lord Ashbourne observed, ‘[Bradford Corporation] have no case unless they can show that they are entitled to the flow of water in question…’ Now, at the time Bradford Cororation v Pickles was decided the law on water rights said that if water flows in undefined channels underneath A’s land and flows from there onto B’s land, B has no right to receive any part of that water. As the water that flowed under Pickles’ land flowed in undefined channels, Bradford Corporation had no right to receive any of the water flowing under Pickles’ land. So Pickles did not violate Bradford Corporation’s rights when he intercepting the water flowing under his land. He therefore committed no tort in relation to Bradford Corporation by acting as he did.

The case of Allen v Flood [1898] AC 1 arose out of a nasty little trade dispute. A steamship called the Sam Weller was being repaired in a dock in Millwall by the Glengall Iron Company. Forty boilermakers were employed on a day to day basis to make repairs to the ironwork of the ship. These boilermakers belonged to a trade union called, very grandly, the ‘Independent Society of Boiler Makers and Iron and Steel Ship Builders’. Members of this union thought that only they should be employed to do ironwork on ships. A couple of carpenters called Flood and Taylor were also employed by the Glengall Iron Company on a day to day basis to make repairs to the woodwork of the Sam Weller. Unfortunately for them, they had been employed at some point in the past by another firm – called Mills & Knight – to do ironwork on another ship. The boilermakers who were working on the Sam Weller found out about this. Being much attached to the principle that only boilermakers should do ironwork on ships, they were outraged by this news and summoned a representative from their union – the Allen of Allen v Flood – to decide what should be done. Allen went to see the managers of the Glengall Iron Company and told them that if they did not tell Flood and Taylor at the end of the day that their services were no longer required, none of the boilermakers working on the Sam Weller would present themselves for work the next day. Allen had the managers over a barrel: they needed the services of the boilermakers to get the Sam Weller repaired. So the managers did what Allen had told them to do, and told Flood and Taylor not to bother turning up to work the next day. It is not clear why Allen acted as he did. It may be that he wanted to punish Flood and Taylor for doing ironwork on another ship. Or it may be that he wanted to make an example of Flood and Taylor so as to discourage other carpenters from doing ironwork on ships. Either way, he was hardly overflowing with the milk of human kindness the day he put Flood and Taylor out of a job.

Flood and Taylor sued Allen in tort for compensation for the losses they had suffered as a result of losing their jobs working on the Sam Weller. However, their claims failed. They could not show that Allen had violated their rights in acting as he did. He had been perfectly entitled to say to the Glengall Iron Company, ‘It’s them or us – you’ve got to choose.’ It would have been different if Flood and Taylor had had a contract with the Glengall Iron Company under which the company had undertaken to employ them until the Sam Weller was completely repaired. In that situation, Flood and Taylor would have had a right that Allen not persuade the Glengall Iron Company to breach its contract with Flood and Taylor. But Flood and Taylor were employed on a day to day basis – they had no contractual right even to be employed the next day. And as Lord Herschell observed, there is a ‘chasm’ between persuading A to breach his contract with B, and persuading A not to re-employ B at the end of his current contract with B. It would also have been different if the boilermakers in Allen v Flood had had a contract with the Glengall Iron Company under which they had undertaken to work on repairing the Sam Weller until it was completely repaired. In that case, it would have been unlawful for Allen to threaten the Glengall Iron Company that if they did not let Flood and Taylor go, the boilermakers would walk out. Flood and Taylor would, in that situation, have been able to establish that Allen violated their rights in acting as he did. We all have a right that other people not intentionally cause us loss using unlawful means to do so, and Allen would have violated that right of Flood and Taylor’s if he had used unlawful means to procure their dismissals. However, because the boilermakers in Allen v Flood were employed on a day to day basis – just like Flood and Taylor – they were perfectly entitled not to turn up to work the next day. So Allen did nothing unlawful in threatening the Glengall Iron Company that the boilermakers would not turn up for work next day if Flood and Taylor were not let go at the end of the day.

The cases of Bradford Corporation v Pickles and Allen v Flood are of huge importance because they illustrate the most important point that any student of tort law has to understand about tort law: If A has acted in some way that has resulted in B suffering some kind of loss, B will not be able to sue A in tort for compensation for that loss unless A violated B’s rights in acting as he did. It won’t matter that A was very wicked or unpleasant in acting as he did; or that A was wholly to blame for the loss suffered by B; or that some theory indicates that it would be a good idea to make A compensate B for the loss that B has suffered. None of that matters. The only thing that matters is whether A violated B’s rights in acting as he did. If he did, then B will normally be entitled to sue A in tort for compensation for the loss she has suffered. If he did not, then B will not be entitled to sue A in tort.

Liability for omissions

Another area of tort law that makes this point about tort law brutally clear is the law on liability for omissions. Suppose, for example, that I have poured myself a glass of ginger beer from out of a bottle. You are sitting nearby and spot what I have not: that there is a decomposing snail at the bottom of the bottle. You don’t warn me of this. You don’t say a word. You are interested to see what will happen next. I drink all of the ginger beer in my glass. Because I’m still thirsty, I reach for the ginger beer bottle and pour its remaining contents into my glass. The remains of the snail drop into the glass. I immediately start throwing up – whether because I’m sickened at the thought that some small parts of the snail might have been in the ginger beer that I drank, or because some small parts of snail were in the ginger beer that I drank, and they have made me ill.

Here I have suffered some physical harm from which you could have easily saved me. It wouldn’t have cost you anything to warn me that there was a decomposing snail in my ginger beer bottle and had you done so, I would have come to no harm. But if I try to sue you in tort for compensation for the injury I have suffered, my claim will fail. The reason is that I had no right that you warn me of the danger I was in. To put it another – and exactly equivalent – way, you did not owe me a duty to warn me of the danger I was in. So you did me no wrong in staying silent and allowing me to drink my ginger beer.

But why doesn’t the law say that I had a right that you save me from harm in this situation? Giving me such a right would have caused you little inconvenience and would have done me a great deal of good. So why on earth doesn’t the law say that I had a right against you in this situation that you warn me of the danger I was in? The reason why in the past the law didn’t recognise the existence of rights to be saved from harm in this sort of situation is pretty obvious. Up until the 20th century, those responsible for shaping English law took the view that, for the most part, individuals should be allowed to do what they liked so long as they did no positive harm to anyone else. This laissez-faire (French for ‘let do’) attitude was well expressed (though not endorsed) by the Victorian poet Arthur Hugh Clough in his poem The Last Decalogue:‘Though shalt not kill; but needst not strive officiously to keep alive.’

But such attitudes have long fallen out of fashion – so why does the law nowadays still say that there is no right to be saved from harm in the sort of situation set out above? A couple of reasons can be given why it still might make sense for the law to hold back from finding that you owed me a duty to take steps to warn me of the danger I was in.

First of all, if the law did recognise that you owed me a duty in this kind of situation, where would it stop in imposing duties on people to rescue others from harm? Would someone who was lying unconscious in the street have a right that passers-by call him an ambulance and wait with him until the ambulance arrived? Would someone who fell ill in a theatre have a right that a ‘doctor in the house’ give up his evening’s enjoyment to treat the patient? Would a doctor who was called at home and asked to come to treat a sick child owe that child a duty to take steps to treat her illness? Would each of us have a right that the police save us from being mugged in the street? Would a beggar in the street have a right that rich people passing him by put some money in his cap? Would starving children in Africa have a right that everyone who could afford to do so donate money to relieve their suffering? The fact is that there is no natural stopping point for the law once it embarks on the course of recognising that strangers can owe each other duties to save each other from harm. So if the law recognised that I had a right that you warn me of the danger I was in, the law as a whole would be thrown into chronic uncertainty. Nobody would know when a duty to save someone else from harm would be owed, and when it would not be.

A second reason why it might not be such a good idea for the law to recognise that I had a right that you warn me of the danger I was in from the decomposing snail is illustrated by a story told about the great American golfer, Bobby Jones. During a tournament, he accidentally touched his ball with his club, and the ball moved slightly. Nobody but Jones saw that his ball had moved. Despite this, Jones drew attention to what had happened and one stroke was added to his score. When the tournament was over – with Jones losing by one stroke – Jones was congratulated on his honesty, but he brushed the congratulations off: ‘You might as well congratulate a man for not robbing a bank.’ It was his duty to report what had happened, and – in his eyes – he deserved no credit for doing his duty. While few of us are as honest as Bobby Jones was, we all tend to think like him, and only give people credit for doing things above and beyond the call of duty. If someone merely does their duty, that is no big deal in our eyes: ‘It was his job – he was supposed to do what he did. What does he want – a medal?’

So if, in the situation we have been discussing, I had had a right that you warn me of the danger I was in and you hadwarned me of that danger, you would probably have earned no credit in my eyes. You would merely have done what the law required you to do. As a result, I would feel no obligation to do something for you to repay what you had done for me. Any connection we might have made as a result of your saving me from harm would be stifled at birth. We would probably part as we had met – strangers. The great virtue of the law on liability for omissions, as it stands at the moment, is that by holding back and not imposing a duty on you to save me from harm, it gives you the opportunity to earn credit in my eyes. If you take the opportunity, your doing so will create the potential for us to form some sort of connection and perhaps friendship. So the law appears to act quite coldly in refusing to recognise the existence of a duty to rescue in situations such as the one we have been discussing. However, by doing this, it leaves people space to create warm relationships between themselves based on gratuitous acts of kindness or helpfulness. Were the law to act more warmly and impose wide-ranging duties on us to rescue each other from harm, the consequence of its doing so might be to make the world a colder, more barren place.

Vicarious liability

Suppose that you have committed a tort in relation to me and I have suffered some kind of loss as a result. In this situation, I’ll normally be entitled to sue you in tort for compensation for the loss that I have suffered. Now – if you were an employee of Ted’s at the time you committed your tort, and you committed your tort in the course of your employment by Ted, Ted will be said to be vicariously liable for your tort, with the result that I will be entitled not only to sue you in tort for compensation for the loss I have suffered, but Ted as well. (This does not mean, of course, that I can sue recover double damages for the loss I have suffered – once from you, and once from Ted. If you fully compensate me for the loss I have suffered, then that will let Ted off the hook. Similarly, if Ted fully compensates me for the loss I have suffered – you won’t then have to compensate me for the loss I have suffered.)

So, for example, in Poland v John Parr & Sons [1927] 1 KB 236, the defendants transported a waggon piled high with bags of sugar across Liverpool. The defendants employed a carter called Arthur Hall to walk alongside the waggon to make sure no one stole a bag of sugar from the waggon as it went through the streets of Liverpool. The claimant was a 12 year old schoolboy. Being a helpful soul, he thought he would help Arthur Hall stop people stealing bags of sugar from the waggon. So he walked alongside the waggon and put a protective hand on one of the bags of sugar. Unfortunately, Hall misinterpreted the claimant’s motives, and thought the claimant was trying to steal a bag of sugar from the waggon. So Hall hit the claimant, with the result that the claimant fell to the floor and the waggon rolled over his right foot, damaging it. In hitting the claimant, Hall committed a tort – the tort of battery (unlawful touching). The claimant sued the defendants for compensation for the injuries he had suffered as a result of Hall’s battery, claiming that the defendants were vicariously liable for Hall’s tort. The claimant’s claim succeeded. It was held that Hall had been acting in the course of his employment by the defendants when he hit the claimant. Hall had been employed by the defendants to protect the bags of sugar on the waggon – and Hall had been trying to do precisely that when he hit the claimant. It didn’t matter that when Hall hit the claimant, he was trying to do his job in a completely unreasonable and unauthorised manner. Hall was still trying to do his job when he hit the claimant, and that sufficed to establish that he was acting in the course of his employment.

So – why does the law make an employer vicariously liable for a tort that was committed by his employee if that tort was committed in the course of the employee’s employment? A number of different explanations have been advanced over the years.

First, if we consider the facts of the Poland case, if Arthur Hall were the only person who could be sued for compensation by the claimant in Poland, the claimant would probably not have been able to recover very much by way of compensation for the injuries he suffered as a result of Hall’s tort. Hall simply would not have had enough money to foot the bill for the claimant’s injuries. Holding the defendants in Poland vicariously liable for Hall’s tort guaranteed that the claimant could sue someone who was worth suing for compensation for his injuries. But this explanation of why there was vicarious liability in Poland does not work. It does not explain why the courts would not have held the defendants vicariously liable for Hall’s tort if he had not been acting in the course of his employment. The need to provide the victim of Hall’s tort with someone to sue who had ‘deep pockets’ would have been just as pressing whether or not Hall’s tort happened to be committed in the course of his employment.

Secondly, some commentators have argued that holding employers vicariously liable for their employees’ torts in cases like Poland helps encourage employers to take steps to ensure that the employees do not commit torts. However, this explanation does not work. If this explanation were correct, we would expect the law to say that an employer will be vicariously liable for an employee’s tort if the employer could have possibly done something to stop that tort being committed. But the law does not say that.

Thirdly, it has become increasingly fashionable to explain the findings of vicarious liability in cases like Poland along the following lines: ‘If a business operates in a way that creates a risk that I will suffer a particular kind of loss, then it is only fair that if that risk materialises and I suffer that loss, I should be able to sue that business for compensation for that loss. After all, the business gets to keep the profits that it makes from operating in the way it does; so it should also have to bear the losses that result from its operating in the way it does. If this is right, it follows that if a business employs you to work for it, and in so doing it creates a risk that you will commit a particular kind of tort in relation to me and cause me loss, then it is only fair that if that risk materialises and you commit that tort in relation to me and I suffer loss as a result, I should be able to sue the business for compensation for the loss that I have suffered. Holding the business vicariously liable for your tort allows me to sue the business for compensation for the loss I have suffered.’

However, if this explanation were correct we would expect the law to say that an employer will be vicariously liable for an employee’s tort if the nature of the job the employee was employed to do gave him the opportunity to commit that tort. But the law does not say that. Suppose, for example, that in the Poland case, while accompanying the waggon of bags of sugar through the streets of Liverpool, Hall had seen one of his enemies standing by the side of the road. Suppose further that Hall took a bag of sugar from the waggon, threw it at his enemy, and knocked him out. Hall’s employers would not have been held vicariously liable for Hall’s tort in this situation. Hall’s tort would not have been committed in the course of his employment. He would have been engaged on a ‘frolic of his own’ in throwing the bag of sugar at his enemy. But if the explanation of the law on vicarious liability advanced in the previous paragraph were correct, we would expect Hall’s employers to be held vicariously liable for Hall’s tort in this situation. By employing Hall to escort the waggon of sugar bags through the streets of Liverpool, they created a risk that he would injure his enemy in the way he did.

Fourthly and finally, it has been argued that holding employers liable for their employees’ torts in cases such as Poland is socially beneficial. The idea is that allowing the victim of a tort to sue the tortfeasor’s employer for compensation for the losses that she has suffered via the device of vicarious liability allows those losses to be shifted onto the tortfeasor’s employer. They can then be spread throughout the community. This is done in one of two ways. Either the tortfeasor’s employer makes his customers pay just a little bit extra for his goods or services in order to cover the cost of paying compensation to the victim of the tort. Or the tortfeasor’s employer gets his insurance company (which has promised – under a liability insurance policy – to cover the employer’s legal liabilities) to cover the cost of compensating  the victim of the tort, and then the insurance company then spreads the cost of paying that compensation throughout the community by charging its customers slightly higher premiums. Either way, the law on vicarious liability works to ensure that the victim of a tort does not have to bear all the losses resulting from that tort being committed, with the result that he suffers huge disruption to his life. Instead, those losses are spread out among the community, with each of us bearing a tiny and easily borne proportion of those losses. The trouble with this explanation of the law on vicarious liability is the same problem that afflicts the first explanation that we considered above. It does not explain why employers are only held vicariously liable for torts committed by their employees if those torts were committed by their employees in the course of their employment. The need to spread the losses suffered by the victim of a tort committed by an employee remains exactly the same, whether or not that tort was committed in the course of the employee’s employment.

The truth is that none of the traditional justifications of the law on vicarious liability provide a satisfactory explanation as to why we have a law on vicarious liability in the first place. So the law on vicarious liability seems to serve no rational purpose. It does, however, serve to keep tort lawyers in business. Were it not for the law on vicarious liability, very few tort claims would be brought in English courts. This is because in almost all tort cases, the only thing that makes it worthwhile to bring a claim for compensation is the prospect that the damages will be paid by an employer, who can usually afford to foot the bill involved in meeting the claim.

The future of tort law

It is periodically suggested by some academic commentators that the law of tort be abolished, either on the ground that it serves no useful purpose or on the ground that whatever useful purposes it does serve could be better achieved through some other mechanism.

Such commentators usually view tort law in one of two ways. Some think of tort law as an off-shoot of the criminal law. According to this view, tort law helps to ensure that our rights are not violated by imposing sanctions on people who violate those rights – the relevant sanction being a liability to pay damages to the person whose rights have been violated. People who take this view of tort law propose that it should be abolished because the person who ends up paying the compensation payable to the victim of a tort will not actually usually be the person who committed the tort. Either the tortfeasor’s employer will pay, thanks to the law on vicarious liability, or the tortfeasor’s liability insurer will pay. So tort law does not actually work very well to deter people from violating other people’s rights. If, then, the function of tort law is to act as an off-shoot of the criminal law, it should be abolished on the ground that it does not actually perform that function anymore.

Other academic commentators take the view that the function of tort law is to ensure that those who deserve to be compensated for the fact that they have suffered a loss of some kind are able to gain compensation for that loss. Such commentators point out that tort law does a lousy job of fulfilling this function. First of all, tort law does a terrible job of delivering compensation to those who deserve to be compensated for some loss that they have suffered. It will protect a millionaire whose Rolls Royce has been carelessly scratched by a cyclist going to work; but it won’t do anything for a baby who has been born horribly deformed because of a defect in its genetic make-up. Tort law protects the millionaire because his rights have been violated; and it does nothing for the baby because the baby’s rights have not been violated. But if tort law’s job is to deliver compensation to those who are most deserving of it, it is difficult to understand why tort law focuses on whether someone’s rights have been violated. It is simply not the case that people whose rights have been violated are the most deserving of compensation. Secondly, tort law is an extremely expensive and inefficient vehicle for delivering compensation to people who deserve to be compensated for some loss that they have suffered. It costs a lot of time and money to determine whether a particular claimant is entitled to sue a particular defendant in tort for compensation for some loss he has suffered; it also costs a lot money for potential defendants to protect themselves against being sued in tort for compensation by taking out liability insurance policies. And – given the perils involved in bringing a claim in tort against someone else – there is no guarantee that those who qualify for compensation under the tort law rules will actually obtain that compensation. If, then, the function of tort law is to deliver compensation to those who are most deserving of it, it seems undeniable that tort law should be scrapped and replaced by a new system that will do a better job of performing that function.

However, before we rush to condemn tort law, we should first of all examine whether the premises underlying our judgment are justified. Is it true to say that the function of tort law is to act as an off-shoot of the criminal law? This seems implausible. If the function of tort law is to impose sanctions on people who violate other people’s rights, why does tort law do this by making tortfeasors pay compensation to the victims of their torts? Why doesn’t it fine tortfeasors for what they have done, with the fines being adjusted according to the degree of a tortfeasor’s fault for what he did? Alternatively, is it true to say that the function of tort law is to deliver compensation to those who are most deserving of it? Again, this seems implausible. As we have already observed, if it were the case that tort law’s job was simply to deliver compensation to those who are most deserving of it, it is hard to understand why tort law simply focusses on protecting those whose rights have been violated.

So what is the function of tort law? It is submitted that the function of tort law is to enable people to vindicate their rights in the face of those who would violate them. If A is proposing to do something that will violate B’s rights, tort law allows B to obtain an injunction, requiring A not to violate B’s rights on pain of being sent to prison if he does. If A has already done something to violate B’s rights, tort law allows B to sue A for damages designed to put her in as good a position as she would have been in had A respected her rights. Viewed in this light, the idea of abolishing tort law becomes faintly preposterous. Abolishing tort law would mean we could no longer take steps ourselves to vindicate our rights in the face of those who would violate them. We would instead become wholly dependent on the State, acting through the criminal law, to protect us from those who would violate our rights. So abolishing tort law would bring about a very significant and almost certainly unjustified transfer of power from the individual to the State.