EVOLVING PERSONAL TORTS

• Date: 01 December 2015
• Author: Christian WITTING BEc, LLB (Monash University), SJD (University of Melbourne); Barrister and Solicitor (Australia); Professor, Queen Mary, University of London; Visiting Professor, National University of Singapore, (2014–2015). GOH Yihan LLB (Hons) (National University of Singapore), LLM (Harvard); Advocate and Solicitor (Singapore); Associate Professor, Singapore Management University.
• Citation: (2015) 27 SAcLJ 607
• Published date: 01 December 2015

An Introduction

1 The law of torts is more dynamic than ever. This is a consequence of an increasingly interdependent, ever-busier, and rapidly changing world, in which the civil law has an important continuing role to play in ensuring minimum standards of interaction between persons and in compensating for wrongs committed. Typically, courts must make their decisions in the absence of comprehensive legislative guidance. The genius of the common law of torts is its ability to respond to cases as they arise, while principles are worked up iteratively over time. Courts are assisted in their task by the ability to compare developments across different jurisdictions and in their partnership with the academic community.

2 This journal takes its place alongside a number of significant collections on tort law, typically organised by theme. Several of these collections of essays have sprung from conferences organised by Andrew Robertson. Volumes on The Goals of Private Law1 and on Rights and Private Law,2 for example, contain important essays that attempt to distil what tort law, and component actions, are fundamentally concerned with. They seek to analyse pervasive concepts and to answer the question whether tort law should be seen in instrumentalist terms, or should be taken to have as its concern fundamental personal rights or protected interests. Other recent collections consider tort law more generally from a “philosophical” point of view,3 debating such matters as

whether there is a basic corrective structure to tort law and whether tort obligations can be grounded in moral notions of justice and desert.4

3 This journal opens with an article by Allan Beever, which is a bridge connecting those significant collections just described with the other articles in this collection. However, in common with those other articles, Beever applies his theory of rights to tort doctrine. This journal is a contribution to various debates about the doctrine itself. It focuses upon “evolving personal torts”. Leading writers on tort law from Singapore and other Commonwealth jurisdictions have chosen what they consider to be important recent developments closely affecting individuals (rather than those which are predominant in commerce). The articles consider issues regarding the trespass torts, what constitutes damage in tort law, derivation of the standard of care in negligence and rapidly evolving torts in defamation and privacy. Two articles consider important doctrines for extending liability in favour of individual plaintiffs, these relating to vicarious liability and to secondary liability more generally. It is the authors' hope that the articles in this journal will prove stimulating to fellow academics and of use in the task of the common law judges as they respond to the challenges facing tort law in a rapidly changing world.

I. Rights

4 Honoré famously suggested that states and courts make conduct tortious so as to “define and give content to people's rights by providing them with a mechanism for protecting them and securing compensation if their rights are infringed”.5 However, until recently, tort law has been understood as a law of wrongs — that is to say, as a law that identifies just when tortfeasors have committed recognised legal wrongs against victims. This conception might be argued to ignore the rights that tort law implicitly recognises within its catalogue of actions. Although in

Ashley v Chief Constable of Sussex 6 Lords Neuberger and Carswell thought that the function of tort law is compensatory and not vindicatory in nature, the majority view was that tort law vindicates victims' rights. This seems to represent the modern thinking. Indeed, an

important recent trend in tort scholarship has been to focus on the rights largely neglected by the focus on the compensatory role of tort law. For example, Robert Stevens in his book Torts and Rights conceives a tort to be a wrong, which in turn is a breach of duty — and that breach is the infringement of a right. Stevens argues that a rights model provides a better understanding of tort law and is also “superior, at least within the system of adjudication which exists in the common law world”.7

5 In his article, Beever continues this important conversation on rights within tort law by making two main points. First, Beever argues that, while the new emphasis on rights has led to the general defeat of the “loss model”, the dismantling of that model has not been completed.8 Indeed, a vestigial influence of the loss model inappropriately leads to the new identification of rights that are closely connected with loss.9 Secondly, Beever provides some possible answers to the question of what tort law is primarily concerned with, if it is not about loss without recourse to the rights implicitly protected. He believes that a more morally attractive picture of tort law is available than that suggested by the loss model.10

6 Beever discusses these two main points with reference to the torts of defamation and the law of trespass to the person. He attempts to show first, through the law of defamation, that the loss model wrongly focuses existing analysis on the notion that the tort protects a right to reputation.11 Similarly, he suggests that the loss model wrongly leads one to think that the law of battery protects a right to bodily integrity. This appears to be contrary to a long history of courts permitting redress for batteries where there is no loss and no substantial violation of the integrity of the body.12 Through his detailed analysis of the other trespasses to the person, Beever does well to show that tort law “is not merely society's response to loss but is rather a primary legal mechanism for the recognition and protection of some of the most fundamental human rights”.13 Indeed, he forcefully makes the point that the “rights that tort law protects are not the products of political compromise in a society governed by principles of distributive justice”, but that tort law:14

… deals with ‘natural duties’ that ‘apply to us without regard to our voluntary acts’, that ‘have no necessary connection with institutions or

social practices; their content is not, in general, defined by the rules of these arrangements’.

By this view, for example, a claim for battery is an “assertion that an individual has failed to respect one's moral personality and a demand that this failure be recognised, acknowledged and remedied by the court”,15 rather than a request for compensation for injury. Ultimately, Beever sees tort law as the “chief mechanism through which the moral personality of the individual is recognised, protected and enforced and it requires wrongdoers to fulfil their primary moral duty”.16

II. Damage

7 It is trite law that the claimant must be able to prove that he suffered actual damage caused by the tortfeasor's tortious conduct in a majority of torts. In a small number of torts, however, proof of actual damage is not required and the mere violation of the victim's interest is enough to give rise to a tortious claim. The difference between torts that are actionable upon damage and those that are actionable per se is a historical one and some have questioned whether this distinction is necessary and principled today. For example, in Watkins v Secretary ofState for the Home Department17 Lord Carswell suggested that it might not:18

… unreasonably be said that any civil wrong should carry damages and that those who deliberately flout the law and deprive others of their rights by abusing their position should be liable to the victims of such acts …

However, he did reserve the idea for further consideration by the Law Commission of England and Wales.

8 Quite apart from the distinction between torts actionable upon damage and torts actionable per se, a further issue arises within torts actionable upon damage: just what counts as actionable damage? In recent years, scholars have begun to focus on this often-neglected question. For example, Donal Nolan has pointed out that, while actionable damage completes the tort of negligence, “it seems strange … that this essential component of negligence liability should be so widely ignored”.19 The reason for this, he suggests, might lie in Ibbetson's explanation that it was only in the late 20th century that lawyers began

to look to the type of loss suffered in negligence. This is in contrast to their predecessors who, influenced by the way the tort of negligence evolved from the action on the case, were more concerned about how the loss had come about.20 This new focus on the type of actionable damage has therefore given rise to a new conversation both by judges and academics as to the scope of such damage.

9 Margaret Fordham in her article makes an important contribution to that conversation. She explores the extent to which courts in various jurisdictions have, in recent years, widened the scope of recoverable damage in negligence involving the invasion of personal interests. She also considers the policy factors behind the expansionary approach adopted by the courts — in particular, the rights-based analysis under which tort law is said to offer a cause of action for wrongs suffered as well as tangible damage sustained, and the related policy that legal duties must not be hollow where personal interests are to be protected as legal rights.21

10 Fordham raises several examples of a more flexible approach to damage claims for pregnancy and childbirth following medical negligence. These are the award of conventional damages for an unplanned addition to one's family, non-disclosure of medical risks and negligently inflicted detention.22 However, despite the fact that damage is now recognised as compensable in a number of new circumstances, Fordham does not think that this indicates a clear road ahead. Indeed, she points to actions with respect to emotional harm which is not consequential on physical damage, terror...