Introduction to tort law - Aims and functions of tort law

Learning Outcomes

This article outlines the primary objectives and functions of tort law within the English legal system, including:

• Compensation as the core remedial aim in tort, the principal heads of loss recoverable in personal injury and property damage claims, and how contributory negligence, mitigation and statutory regimes affect quantum.
• Pecuniary and non‑pecuniary losses, methods of assessing and evidencing these heads of damage, and key principles such as the eggshell skull rule, lump‑sum versus periodical payments, and the impact of the discount rate.
• Deterrence in tort and its limits, including the influence of liability insurance, risk–utility balancing in breach of duty, statutory policy (Compensation Act 2006 and the Social Action, Responsibility and Heroism Act 2015), and emergency or socially useful activities.
• Other functions of tort law, including corrective justice, vindication of rights through damages and injunctions, and loss distribution in practice (for example via employer, occupier and motor insurance schemes).
• Contrasts between the aims of tort law and the purposes of contract and criminal law, with application to typical SQE1-style scenarios such as pure economic loss, negligent misstatement, concurrent liability and overlap with criminal offences.
• Analysis of tortious liability scenarios presented in SQE1-style multiple-choice questions, focusing on identifying the aim being tested, eliminating distractor options and selecting the remedy or policy justification most consistent with examiners’ expectations.

SQE1 Syllabus

For SQE1, you are required to understand the fundamental nature and role of tort law. This includes appreciating its main aims and how it operates to provide remedies for civil wrongs. While specific questions solely on the aims might be less common, this understanding underpins your ability to analyse liability in various torts. with a focus on the following syllabus points:

• The primary objectives of tort law, particularly compensation and deterrence.
• The distinction between tort law, contract law, and criminal law regarding their purposes.
• How the principles of tort law function to address civil wrongs and protect certain interests.
• How damages are categorised and assessed, including pecuniary and non‑pecuniary loss, contributory negligence and the eggshell skull rule.
• The role of statutory frameworks (e.g., Compensation Act 2006, Consumer Protection Act 1987, Occupiers’ Liability Acts) in shaping the functions of tort.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following best describes the primary aim of awarding damages in tort?
   1. To punish the defendant for wrongful conduct.
   2. To restore the claimant to the position they were in before the tort occurred.
   3. To deter the general public from committing similar wrongs.
   4. To establish a new legal principle.
2. A key function of tort law is deterrence. Which of the following illustrates general deterrence?
   1. A specific defendant being ordered to pay substantial damages, making them unlikely to repeat the tort.
   2. A manufacturer improving its product safety standards after a competitor faced a large product liability claim.
   3. A court issuing an injunction against a specific defendant to prevent future harm.
   4. A claimant receiving compensation for their injuries.
3. How does tort law primarily differ from criminal law in its objectives?
   1. Tort law deals with intentional acts, while criminal law deals with negligence.
   2. Tort law aims to compensate individuals, while criminal law aims to punish offenders and protect the public.
   3. Tort law requires proof beyond reasonable doubt, while criminal law uses the balance of probabilities.
   4. Tort law remedies are limited to financial damages, while criminal law can impose imprisonment.

Introduction

Tort law is a significant area of civil law concerned with providing remedies for wrongs committed by one party against another. Unlike criminal law, which focuses on punishment by the state, or contract law, which deals with breaches of agreements, tort law primarily addresses breaches of duties imposed by law, leading to harm. Understanding the core aims and functions of tort law is essential for tackling the complexities of civil liability assessed in SQE1.

Key Term: Tort
A civil wrong, independent of contract, for which the primary remedy is typically an award of damages. It involves the breach of a duty imposed by law, resulting in damage to the claimant.

The Aims of Tort Law

Tort law serves several functions within the legal system and society. While these functions can sometimes overlap or even conflict, the main objectives are generally recognised as compensation and deterrence.

Compensation

The principal aim of tort law is to provide compensation for the harm suffered by the claimant due to the defendant's wrongful act. The goal is restitutio in integrum – to restore the claimant, as far as possible through a monetary award (damages), to the position they would have been in had the tort not been committed.

Key Term: Compensation
A sum of money awarded to a claimant in civil proceedings to make amends for a wrong they have suffered, aiming to restore them to their pre‑tort position.

This involves quantifying the claimant's losses, which can include:

• Pecuniary losses: Financial losses such as medical expenses, lost earnings (past and future), the cost of care and assistive equipment, and the cost of repairing or replacing damaged property.
• Non‑pecuniary losses: Losses that are not easily quantifiable in monetary terms, such as pain and suffering and loss of amenity (enjoyment of life). These are assessed by reference to guidelines and comparable case awards.

Compensation is guided by established principles:

• The claimant should not be over‑compensated; they have a duty to mitigate loss by taking reasonable steps to limit the impact of the harm.
• The eggshell skull rule applies: if some damage of the relevant type is foreseeable, the defendant remains liable for the full extent of the harm actually suffered, even if the claimant’s particular vulnerability makes the loss greater than expected.
• Where fault is shared, damages may be reduced for contributory negligence under the Law Reform (Contributory Negligence) Act 1945.
• In fatal cases, statutory regimes ensure compensation is available: the deceased’s cause of action survives for the estate under the Law Reform (Miscellaneous Provisions) Act 1934, and dependants may claim for loss of financial support under the Fatal Accidents Act 1976.

Tort compensation is usually awarded as a lump sum, though courts can order structured or periodic payments in appropriate personal injury cases. The discount rate applied to future losses (set by the Lord Chancellor under the Damages Act 1996) reflects investment assumptions and is periodically reviewed.

Worked Example 1.1

Aisha is involved in a car accident caused entirely by Ben's negligent driving. Aisha suffers a broken arm, requiring medical treatment and time off work. Her car is also damaged. What losses would compensation aim to cover?

Answer:
Compensation would aim to cover Aisha's medical expenses (pecuniary), her lost earnings while unable to work (pecuniary), the cost of repairing her car (pecuniary), and an amount for her pain and suffering due to the broken arm (non‑pecuniary). The goal is to restore her financial and physical position to what it was before Ben's negligence.

Worked Example 1.2

Liam, a professional pianist, sustains a minor hand burn due to a shop’s negligence. The injury triggers a rare condition that severely impairs his playing. Can Liam recover for his significant loss of earnings?

Answer:
Yes. Some harm of the relevant type (injury from a burn) was foreseeable. The eggshell skull principle means the defendant must take the victim as found, so the increased severity of loss (including significant lost earnings tied to Liam’s profession) is compensable.

Worked Example 1.3

Sara suffers head injuries in a collision caused by another driver. Sara was not wearing a seatbelt; medical evidence shows her injuries would have been less severe had she done so. How does this affect damages?

Answer:
Damages are reduced for contributory negligence to reflect Sara’s share in the responsibility for the damage. In seatbelt cases, courts adopt percentage reductions depending on whether injuries would have been prevented or merely less severe (Froom v Butcher guidance).

Deterrence

Another major function of tort law is deterrence. By imposing liability and requiring the payment of damages, tort law aims to discourage both the defendant (specific deterrence) and other members of society (general deterrence) from engaging in similar wrongful conduct in the future.

Key Term: Deterrence
The aim of discouraging potential wrongdoers from committing torts through the threat of legal liability and potential financial consequences.

• Specific Deterrence: Aims to prevent the actual defendant from repeating the tortious behaviour. The prospect of paying damages or facing other sanctions may make the defendant more careful in the future.
• General Deterrence: Aims to discourage society at large from similar conduct by highlighting the potential legal consequences through publicised cases and judgments. For instance, large product liability awards can influence industry‑wide safety practices.

Deterrence is fact-sensitive. Courts routinely balance risk, utility and practicability when determining breach. Social utility can justify taking some risks where proportionate – for example, emergency services responding to life‑threatening situations (Watt v Hertfordshire County Council) – yet standards of care remain objective and safety‑focused. Parliament has reinforced these themes:

• Section 1 of the Compensation Act 2006 allows courts to consider whether the imposition of precautionary measures might prevent or discourage desirable activities.
• The Social Action, Responsibility and Heroism Act 2015 invites courts to have regard to whether defendants were acting for the benefit of society or demonstrating heroism when considering negligence and breach of statutory duty.

Worked Example 1.4

A fire service vehicle transports heavy equipment unsecured to reach a trapped casualty. A firefighter is injured when the equipment moves. Does deterrence require liability?

Answer:
Not automatically. The court will weigh social utility and practicability. In Watt v Hertfordshire, the emergency context justified some increased risk; however, this does not excuse all lapses. Courts still assess whether reasonable steps could have been taken compatible with the urgent objective.

Exam Warning

While deterrence is a recognised aim, its effectiveness is debated. Factors like the availability of insurance (which often spreads costs and shields defendants from the full financial impact) or situations where potential damages are seen as a 'cost of doing business' can limit the deterrent effect. For SQE1, focus on compensation as the primary aim.

Other Functions

Tort law also serves other functions, although these are often seen as secondary to compensation and deterrence:

• Corrective Justice: It provides a mechanism for acknowledging a wrong has occurred and holding the wrongdoer accountable, aiming to correct the injustice between the parties. Where duties are breached, tort locates responsibility with the party whose conduct caused the harm, ensuring they put the injured party back in the position they should have been in.
• Vindication of Rights: Legal action in tort allows claimants to assert and protect their rights (e.g., bodily integrity in trespass to the person; protection of land use in private nuisance; reputation in defamation; privacy via misuse of private information). Remedies are not limited to damages: injunctions can restrain continuing or threatened wrongs, and declarations can vindicate rights.
• Loss Distribution: Tort law, particularly through liability insurance, spreads the cost of accidents and losses across society or specific sectors rather than leaving it to fall solely on the victim or the tortfeasor. Statutory frameworks, such as the Motor Insurers’ Bureau schemes for uninsured or untraced drivers, also reflect loss distribution policy.

Worked Example 1.5

A factory emits excessive noise affecting neighbours. The court finds a private nuisance. What remedies reflect vindication versus compensation?

Answer:
The court can award damages to compensate past harm and grant an injunction to restrain future interference. Injunctive relief vindicates the claimant’s right to quiet enjoyment, while damages address the loss already suffered.

Relationship with Other Areas of Law

Understanding the aims of tort law is clearer when contrasted with other related areas.

Tort vs Contract Law

While both are branches of civil law, the source of the obligations and the remedial aims differ:

• Tort: Duties are primarily fixed by law and generally owed to persons generally (e.g., the duty not to injure one’s “neighbour”). Liability typically depends on fault (negligence), though some regimes (e.g., Consumer Protection Act 1987) impose strict liability for defective products. The core remedial aim is to restore the claimant to their pre‑tort position.
• Contract: Duties arise from a voluntary agreement between specific parties. Damages typically aim to protect the expectation interest: to put the claimant in the position they would have been in had the contract been performed. Contract liability can be strict; breach does not depend on fault.

Economic loss likewise illustrates the different purposes:

• In tort, pure economic loss is generally irrecoverable, absent special relationships such as negligent misstatement (Hedley Byrne v Heller), because tort primarily protects interests in physical integrity of person and property. The limitation restrains the scope of liability consistent with tort’s aims.
• In contract, loss of profits or other expectation losses may be recoverable under the agreed allocation of risk.

Exclusion clauses and disclaimers are policed differently. In tort contexts, attempts to exclude liability (e.g., notices at premises) are constrained by the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015, especially for death or personal injury resulting from negligence.

Worked Example 1.6

A surveyor negligently prepares a report relied upon by a house buyer. Is the loss compensable in tort?

Answer:
Potentially, yes. Negligent misstatement can found a duty where there is an assumption of responsibility and reasonable reliance (Hedley Byrne line of authority). The aim in tort remains compensation to restore the buyer for loss caused by the breach of a duty imposed by law, not to award the buyer the benefit of bargain damages typical of contract.

Tort vs Criminal Law

These areas address wrongful conduct but serve different purposes:

• Tort: Focuses on providing remedies (usually compensation) to the injured individual. Proceedings are brought by the claimant against the defendant. The standard of proof is the balance of probabilities. Non‑monetary remedies (e.g., injunctions) are available to prevent ongoing or future harm.
• Criminal Law: Focuses on punishing conduct deemed harmful to society as a whole and deterring crime. Proceedings are brought by the state. The standard of proof is beyond reasonable doubt. Sanctions include fines, community orders and imprisonment.

It is important to note that the same act (e.g., an assault) can give rise to both criminal liability and tortious liability (battery). Although exceptional, exemplary (punitive) damages can be awarded in tort within narrow categories (Rookes v Barnard), but the mainstream function remains compensatory rather than punitive.

Key Point Checklist

This article has covered the following key knowledge points:

• Tort law provides remedies for civil wrongs, primarily through compensation.
• The main aim of tort damages is restitutio in integrum – restoring the claimant to their pre‑tort position.
• Heads of damage include pecuniary loss (e.g., earnings, medical expenses, property repair) and non‑pecuniary loss (pain, suffering, loss of amenity). Contributory negligence can reduce damages; the eggshell skull rule can increase the amount recoverable where the severity is greater due to claimant vulnerability.
• Deterrence, both specific and general, is another key function, tempered by social utility, practicability, insurance and statutory policies (Compensation Act 2006; SARAH 2015).
• Other functions include corrective justice, vindication of rights (including injunctive relief), and loss distribution through insurance and sectoral schemes.
• Tort duties are generally imposed by law, unlike contractual duties which arise from agreement; tort damages focus on restoration, whereas contract damages protect expectation interests.
• Tort law focuses on individual compensation and rights‑based remedies; criminal law focuses on punishment by the state and public protection, applying a higher standard of proof.
• Statutory frameworks can shape functions and outcomes: for example, the Consumer Protection Act 1987 (strict liability for defects), Occupiers’ Liability Acts (duties to visitors and trespassers), and the Unfair Contract Terms Act 1977/Consumer Rights Act 2015 (limits on exclusion of liability).

Key Terms and Concepts

• Tort
• Compensation
• Deterrence