3.3 - Tort theory, policy and fault

Civil Liability And Policy

Tort law is part of civil law. A claimant sues a defendant and normally seeks a civil remedy, such as damages or an injunction. The key question is not "has the defendant committed a crime?" but "should this defendant be legally responsible for this claimant's loss?"

Theory of tort law asks why that responsibility is imposed. AQA identifies three recurring ideas:

This is why tort is not simply a search for a harmed claimant. A claimant may have suffered serious loss and still fail because the law does not impose a duty, the damage is too remote, the loss is not recoverable, a defence applies, or an injunction would be too harsh. Conversely, a defendant may be liable even though the defendant was not personally at fault, as in some vicarious liability situations.

For Paper 2, the theory is not separate from the torts. It runs through negligence, occupiers' liability, nuisance, Rylands v Fletcher, remedies and vicarious liability. For example:

• in negligence, fault usually appears through breach of an objective standard of care
• in duty of care, policy controls whether a new duty should be recognised
• in pure economic loss and psychiatric injury, policy explains strict restrictions on recovery
• in nuisance, reasonableness and "give and take" may matter more than ordinary negligence
• in vicarious liability, policy may make an employer liable even without personal fault

The common confusion is to treat "liable" and "at fault" as the same word. They are not. Fault is one possible reason for liability; policy is another. A strong AQA answer keeps those ideas separate, then explains how they overlap in the particular tort being discussed.

Fault As A Legal Tool

Fault is the organising idea behind much of tort law, but it is not the only basis of liability.

In AQA theory questions, begin by defining it before discussing a particular tort. Fault can appear at several levels.

Fault matters because it gives liability moral and practical force. If a defendant could have behaved differently, damages can look justified: the defendant caused the risk, should bear the loss and may be deterred from repeating the behaviour. Fault also helps allocate responsibility between claimant and defendant. For example, contributory negligence under the Law Reform (Contributory Negligence) Act 1945 can reduce damages where the claimant's own failure to take reasonable care contributed to the damage.

Fault is not always required in the same form. Negligence usually asks whether the defendant acted as a reasonable person would have acted. The Occupiers' Liability Act 1957, s2(2), similarly frames the occupier's duty to lawful visitors around taking such care as is reasonable in the circumstances to see that the visitor will be reasonably safe. That is fault-based in the sense that the occupier is judged against reasonable care, not against a guarantee of complete safety.

Other torts are more mixed. Private nuisance does not require proof that the defendant was negligent. The claimant must show an unlawful indirect interference with use or enjoyment of land, assessed through factors such as locality, duration, intensity, malice and sensitivity. Fault can still matter, especially where the defendant acts maliciously, but nuisance is not just negligence with land added.

Rylands v Fletcher is traditionally described as strict liability because the claimant does not have to prove negligence. However, it is not absolute liability. Modern limits such as non-natural use, escape, foreseeability of damage and defences prevent liability from being automatic.

The exam skill is to give a calibrated judgement. Instead of writing "tort is based on fault", write something more exact: "Negligence is strongly fault-based through breach of an objective standard, but some tort liability is imposed for policy reasons even without personal fault, especially vicarious liability."

Caparo And Duty Policy

Duty of care is one of the main places where policy enters negligence. Before asking whether the defendant breached a duty, the court must decide whether the defendant owed the claimant a duty at all.

The starting point is Donoghue v Stevenson. The case supports the neighbour principle: a person should take reasonable care to avoid acts or omissions likely to injure people who are so closely and directly affected that they ought reasonably to be in contemplation. In modern AQA answers, Donoghue is useful because it links duty to foreseeability and proximity.

Caparo v Dickman is the major policy tool for novel duty situations. The three-part test asks:

1. Was damage reasonably foreseeable?
2. Was there sufficient proximity between claimant and defendant?
3. Is it fair, just and reasonable to impose a duty?

The third stage is where explicit policy reasoning appears. A court may ask whether recognising the duty would expose defendants to indeterminate liability, interfere with public functions, cut across a more suitable area of law, produce defensive practice, or impose an unfair burden compared with the defendant's role.

Caparo should not be used mechanically in every negligence problem. Robinson v Chief Constable of West Yorkshire is important for AQA because it confirms that where an established duty category already exists, the court normally follows precedent rather than treating Caparo as a universal formula. For example, road users owe duties to other road users and pedestrians. In that type of established physical-injury case, a long Caparo discussion is usually unnecessary.

Use the authorities like this:

Policy is not a free-floating opinion. It must connect to the legal issue. "It would be unfair" is weak unless the answer explains why: perhaps the class of claimants is unlimited, the defendant could not insure sensibly, the claimant had a better route through contract, or the defendant's public role would be distorted by liability.

The common confusion is to treat duty, breach and causation as if they all do the same work. Duty asks whether the defendant is legally required to take care for this claimant's interest. Breach asks whether the defendant fell below the standard required. Causation asks whether that breach caused the recoverable damage.

Policy Restrictions On Loss

Policy becomes especially visible where the claimant's loss is not ordinary physical injury or property damage. AQA highlights pure economic loss and psychiatric injury because both show the law allowing some claims while drawing strict boundaries.

Pure economic loss is financial loss that is not a consequence of physical injury or physical damage to the claimant's property. The key distinction is:

Spartan Steel v Martin is the standard AQA illustration of the negligent-act restriction: loss connected to damaged property may be recoverable, but additional lost profit from work that could not be done because of a power cut was pure economic loss and not recoverable. The policy concern is that one careless act could otherwise generate a chain of financial claims from people who were indirectly affected.

Hedley Byrne v Heller is the foundation for negligent misstatement. A claimant may recover pure economic loss caused by a careless statement where there is a special relationship, often built from expertise, an assumption of responsibility by the defendant, a known user or purpose, and reasonable reliance by the claimant. Caparo then helps restrict that liability: not every person who reads or relies on information is owed a duty.

The policy arguments for restricting pure economic loss include:

• floodgates: a single mistake could create a very large and uncertain class of claimants
• indeterminate liability: the defendant may not know who will rely on the conduct or statement
• contract boundaries: tort should not let claimants bypass agreed contractual risk allocation
• insurance and cost: pure financial risks may be difficult to price and insure against
• fairness to claimants: the restriction can leave a claimant uncompensated despite real loss and no personal fault