Coherence and Reform in English and Welsh Tort Law

This essay discusses the proposition that the English and Welsh tort law lacks coherence, but that it can and ought to be reformed in ways that would make it more coherent. Apart from discussing the reasons why tort law is considered to be incoherent, this essay also discusses the ways in which reform of the tort law can be done for the purpose of increasing coherence and clarity of the tort law.

One of the primary reasons why the tort law is considered to be lacking in coherence is that it is not codified as of this time. In the absence of codification of the law of tort, the task of systemising the law of tort has fallen to the courts and they have proceeded to do so through case law. This is an important point of distinction between civil law systems that have placed tort law in a civil code, and common law systems that have used case-law development. When the development of tort law is left only to the courts and case law is the primary method for development of the tort law, there are some issues that can be raised with reference to the incoherence in the tort law including the development of a significant number of liability categories which is discussed later in this essay. At this point it may be noted that the lack of codification in general has been considered to be a reason for lack of coherence and clarity in law. Indeed, it has been stated that the failure to conclude codification project has left certain important areas of English law “in a critical condition and in real need of some form of systematisation and clarification.” If this statement can be made generally with respect to English law, it can be made of the law of tort as well.

To start the discussion on whether the development of tort law is marked by incoherence, one of the important statements made in this context is by Ken Oliphant who writes that “incoherence in large parts of our law of tort is a major barrier to our communication of its key tenets and our engagement in debates about its future.” Therefore, two points may be made out at the outset before setting out the important areas that mark incoherence of the tort law; first, that the tort law does have a level of incoherence, which will be substantiated with more evidence later; and second, that this incoherence is a barrier to communication of the principles of tort law.

The law of tort consists of many principles that are not codified and that have been developed over a period of time by the courts, but which are difficult to summarise in a coherent manner; an example of this is given of the ‘neighbour principle’ which was first laid down in Donaghue v Stevenson, but which is difficult to explain a concise and declaratory version of the principle. The difficulty of providing concise and articulate definitions or explanations of the neighbour principle, led Ken Oliphant to conclude that the common law approach to duty of care principle is itself incoherent and “precludes any effort to communicate or discuss its nature and role in intelligible terms.”

The tort of negligence is arguably the most important tort in the tort law; unfortunately, this is the area which is considered to be the most incoherent and even “messy” in the domain of tort law. Many scholars have noted the lack of coherence in the area of tort of negligence. It has been said that despite its dominance within the common law of tort, there is much incoherence in tort of negligence. Bob Hepple observed that “the law of negligence is almost universally criticized for its lack of coherence.” The law of tort in general is criticised for its falling apart into unconnected areas of liability. Specifically, with regard to tort of negligence, the problem that is noted is that negligence law itself is at the risk of disintegrating “into a series of isolated decisions without any coherent principles at all.” To restate this point, the law of tort in general is considered to have disintegrated into many unconnected liability pockets, and tort of negligence is at the risk of becoming increasingly incoherent as noted by Lord Lloyd.

One of the reasons that is considered to be relevant to the increasingly incoherence in the law of tort is the incoherence of the duty of care principle. There is no agreement on the nature of the duty of care concept in the law of tort. Two schools of thought that are seen to have some dominance on duty of care explanation: first sees duty of care as constituting bilateral relationship between claimant and defendant for constituting tortious liability; and second sees duty as a ‘control device’ against excessive or inappropriate liability. The second concept explains that the duty of care is a fictional concept that relates to situations where liability in negligence may arise, which does not relate to obligation on the individual but is a normative judgement about the scope of tort. Authors who are claiming the second concept also argue that duty of care concept must be abandoned because it is obscuring the understanding of negligence law and not allowing the rational development of the law of negligence law.

Oliphant recommends some measures that can be taken to make the tort law in England and Wales more coherent. The first measure is to rationalise the number of distinct liabilities in the law of tort. An example can be taken of France where there are just five articles of the Code Civil, beginning with the general liability for fault. Germany has the German Civil Code, which also has thirty-one paragraphs related to torts. The difference between the English and Welsh law on one hand, and the French and the German law on the other, is that there is a superabundance of liabilities in the former, which leads to confusion and also some overlapping in liabilities, which leads to perverse results. This can be exemplified by the judgments in two cases, OBG v Allan, with Revenue and Customs Commissioners v Total Network SL. In OBG v Allan, the court decided that a crime giving rise to no civil liability was not ‘unlawful means’ for the purpose of establishing liability for tort of loss by unlawful means. In Revenue and Customs Commissioners v Total Network SL, the court declined to adopt this principle and held that a crime giving rise to no civil liability would constitute ‘unlawful means’ in the law of conspiracy. Thus, two different outcomes are resultant of the court adopting differing approaches to similar situations.

The second recommendation offered by Oliphant is that injunctions and other forms of specific relief should not just be seen as remedies of tort but rather as freestanding mechanisms for protecting rights. This would allow the remedies to be used beyond tort law and will not be limited to cases where the courts have to assess whether there are elements of a recognised tort that are satisfied in the case. This would allow these remedies to be used for rights-protection more effectively. The third recommendation offered by Oliphant is that there should be rationalisation of the tort of negligence.

There has been some effort to bring in coherence to the principles of common law through statutory means, but this has also led to a piecemeal approach towards specific principles of tort law instead of tackling the entire tort law at one time. For example, the Compensation Act 2006 and the Social Action, Responsibility and Heroism (SARAH) Act of 2015, Section 1 purported to re-state particular aspects of the existing common law to address some public misconceptions as well as to provide the additional factors that the court must consider. The factors include whether the person was acting for the benefit of society or any of its members (section 2); demonstrated a predominantly responsible approach towards protecting interests of others (section 3); or acted heroically by intervening in an emergency (section 4). However, there is no indication in the Act as to how the courts will weigh these factors. This would then be left to the courts to determine. What this indicates is that even when it comes to use of statute for clarifying principles of tort law, the approach is piece meal and can be seen as a support to the method of adjudication for the purpose of developing the tort law.

Indeed, it has been noted that the method of systemisation of tort law in the English and Welsh legal systems is based on combination of caselaw and legislation. This can be said to be a way of reforming the tort law. There are many examples of this approach in the English and Welsh law context. For example, the Occupiers’ Liability Acts of 1957 and 1984 address the area of occupier’s liability and is related to negligence. Similarly, the Defamation Act 2013 addresses the tort of defamation. The Consumer Rights Act 2015 addresses certain rights of consumers which are related to negligence.

One of the problems with the current way of reformation of tort law, which is of combination of case law and statute is that case law remains the dominant force which is supported only by piecemeal statutes for consolidation and refining of specific areas of law. The examples of statutes that are taken in the previous paragraph can be examined here to assess the point that statutes at this point are not engaging in comprehensive legislation and is not re-examining the well-established fundamental principles that are laid down in the case law. For example, the Occupiers’ Liability Acts of 1957 and 1984 does not even define the term occupier and the definition is derived from the existing case law. The Defamation Act 2013 does not define defamation and this concept is derived from the case law on the subject. The Consumer Rights Act 2015 does not legislate on all consumer rights. Therefore, what can be noted from this is that even where statute is used to buttress case law, the principal work done by the statutes is to consolidate the law and not to reform it. As far as the problematic areas of negligence, multiple liability categories and overlapping of liability are concerned, statute law does not address this or try to reform these areas. Indeed, what is seen is that even after the enactment of these laws, case law has been required to clarify certain aspects of the tort law. This can be seen from the way in which the courts were required to clarify the serious harm test and the public interest defence even after the Defamation Act 2013 consolidated the ‘serious harm’ test from case law and provided the public interest defence based on Reynolds. It may be argued that the need for clarification of the statutory provision is needed because the statute is not addressing the real requirement of reformation of the law of tort. Statutes so far have been piece meal in their addressing of the tort law.

To conclude, tort law has been primarily developed by the courts and therefore, case law remains the primary source of locating the principles of tort law. The development of tort law has seen the development of many categories of liability, some of which may overlap. At this point, there are also concerns raised about the law of tort not being clear. The need for coherence in the tort law has been reiterated time and again by a number of scholars and even judges as discussed in this essay. One of the ways in which the law can be reformed is through codification, which at this time is piece meal and more to the task of consolidating rather than reforming the law of tort. Other ways of reforming the law of tort could be by rationalising the number of distinct liabilities in the law of tort or by rationalising the law of negligence.

Books

• Oliphant K, ‘Rationalising Tort Law for the Twenty-First Century’ in K. Barker, K. Fairweather and R. Grantham (eds.), Private Law in the 21st Century (Hart Publishing 2017).
• Schofield P and J Harr (eds), Jeremy Bentham, ‘Legislator of the World’ Writings on Codification, Law and Education Oxford University Press 1998.

Journals

• Giliker P, ‘Codification, Consolidation, Restatement? How Best To Systemise The Modern Law Of Tort’ (2021) 70(2) International & Comparative Law Quarterly 271.
• Hepple B, ‘Negligence: The Search for Coherence’ (1997) 50 Current Legal Problems 69.
• Ibbetson D, ‘How the Romans Did for Us: Ancient Roots of the Tort of Negligence’ (2003) 26 University of New South Wales Law Journal 475.
• McBride N, ‘Duties of Care—Do they Really Exist?’ (2004) 24 OJLS 417.
• Nolan D, ‘Deconstructing the Duty of Care’ (2013) 129 LQR 559.
• Stanton K, ‘Professional Negligence: Duty of Care Methodology in the Twenty-first Century’ (2006) 22 Professional Negligence 134.
• Steiner E, ‘Challenging (again) the undemocratic Form of the Common Law: Codification as a Method of Making the Law Accessible to Citizens’ (2020) 31 KLJ 27.

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