The Effect of the House of Lords Judgment in Ruxley Electronics and Construction Ltd V Forsyth37 - Essay Example

 The term ‘tort’ entails wrong.1 According to John (2005), “Before tort was identified as a legal category in its own right, torts were known as ‘private wrongs’.”2 In modern tort cases the view of the judicial is that defendants owe duties to abstain from unfair conduct. Substantial tort philosophy is filled with principles and constructs that convey the idea of one person wronging another.3 The main problem is that: “the idea of committing wrong carries obvious moral connotations, yet some fundamental features of tort doctrine seems to cast doubt on whether tort really has anything to do with wrongful conduct” (John, et. all, 2004). This paper seeks to justify the too little liability under tort law in case of Economic loss, Psychiatric injury and wrongful life and Defamation. Economic Loss: Till the 1970’s the law on liability for economic loss due to negligent acts was easy. Economic loss due to a negligent act may result in physical harm to a third party's property. Loss due to damage may disrupt the claimant's capability to continue his business, as in Cattle v Stockton Waterworks.4 In this case, the claimant wanted to build a tunnel on his land but the construction took time due to the leaking pipelines laid by the defendant, a waterworks company. However, when the claim was made it was held that the loss was too causal and remote. Another example is Weller v Foot and Mouth Disease Research Institute.5 The defendant was responsible for the escape of a virus that could infect cattle in the neighbourhood and cause them to die. Since this was a foreseeable fact, duty of care was owed to the owners of the cattle. Plaintiff’s claims in negligence failed as they were not the owners of the cattle or have a proprietary interest in those premises. Economic torts defend people from intrusion with their business. The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon".6 Two cases established economic tort's kinship to competition and labour law. In Mogul Steamship Co. Ltd.7, the plaintiff indicated he had been forced back from the Chinese tea market by challengers at a 'shipping conference' that had come unitedly to dump his company. However, this alliance was found lawful and "nothing more [than] a war of competition waged in the interest of their own trade."8 This case actually imposes too little liability because the plaintiff who wanted to conduct business was forced back and out of business. His economic loss was not compensated. In labour law the most outstanding case is Taff Vale Railway v. Amalgamated Society of Railway Servants.9 In this case the House of Lords thought that unions have the liability in tort for aiding workers to strike for improved payment and working conditions. This irritated workers and eventually led to the creation of the British Labour Party and the Trade Disputes Act 1906. In addition to this, torts applied against unions are a conspiracy10 meddling with a profitable contract11 or threats.12 Economic loss rule links to the ingredient of anticipating harm. It has been recommended that tort principles based on predictability were formulated for physical damage and is not practical outside such settings. Nevertheless, when the conventional predictability test is linked with cases of pure financial loss then it leads to disastrous levels of liability (Feldthusen, 1989, pp.10-11).13 Under negligence rule, an injury restraining defendants’ accountability to victims’ losses will either ensue in optimum care or too little care. Thus, when required, any alteration to compensation must always be positive (Polinsky and Rubinfeld, 1988). If the litigation costs are not very high then it becomes certain that injurers will surely take due care of the victims. But as this is not so and the costs being very high, the suit is discouraged (Kidner, 2006). The chance of a court making a mistake in deciding about the injurers’ accountability under a negligence rule also affects the optimum damage rule. Particularly, if courts are prone to err in determining the due care taken by the injurer then negligence liability rule with complete compensation damage will not essentially tempt injurers to take due care. Courts may sometimes commit error in judging a careful injurer liable and a negligent injurer not liable - under reasonable conditions. Under such circumstances excessive care taking will result in additional costs. Care taking will be unwarranted if damage awards fully compensate victims for their losses (Mauro and Palmer, 2003). Thus, injurers will react to doubtfulness by taking excessive care – unless the court does not underestimate injurers’ care (Shavell, 1987). Both literally and hypothetically, the law cannot be acceptable by an unforeseeability concept. As a rule, the existence or nonexistence of predictability is a realistic and legal issue that gets into the equation of liability in the directions fixed by the legal system. At the same time, it is better that no a priori difference can (or should) be made among economic and uneconomic effects of a tort (Mauro and Palmer, 2003). In addition to this, it is the plaintiff who has to always tolerate the burden of establishing the loss by piecing together evidence. This may discourage possible claimants from instituting suit (Mauro and Palmer, 2003). Finally, courts have the necessary capability to carry on with evaluation issues and collusive claims as this seems to be their everyday duty.44 Psychiatric injury and wrongful life: Of late, the area of psychiatric illness has become very popular and growing interest in this area of law has been deepened by the extensive media reporting that has been rendered to prestigious cases. In reality this attention from the media actually focused on the proceedings that followed the tragedy at the Hillsborough football stadium.15 Ninety-six viewers died and more than four hundred were wounded due to crushing when fans were allowed to enter a porch that was previously full. Claims for psychiatric illness were made for by relatives of those killed or injured in the tragedy56 and by police officers who were present at the scene.67 In this case, most of the officers were allowed to recover damages but majority of the relatives of the dead and injured did not succeed in their claims. The question of liability for psychiatric illness evokes a series of strongly held opinions. Some argue that similar principles which apply to liability for physical injury should be enforced to liability for psychiatric illness as well. They are of the opinion that there is no justifiable reason to inflict special restrictions with regard to claims for the latter (Mullany and Handford, 1993). While some others argue that liability for psychiatric illness should be discarded altogether. They feel that the litigation rules required to manage possible liability are so unnatural that they defame the law (Stapleton, 1994). Quite a large amount of relevant decisions are found on this subject out of which two are particularly important.78 For example in Page v Smith,89 the House of Lords (held that “where a person suffered psychiatric illness as a result of his or her ‘direct involvement’ in an accident, general principles of negligence applied so that the rules relating to liability were no different from those which would have applied if the plaintiff had suffered a physical injury.” Where as, In Frost v Chief Constable of South Yorkshire Police,90 the Court of Appeal granted damages to police officers who had endured psychiatric illness while doing their professional duties at the scene of the Hillsborough football stadium disaster. Much mix-up is consequently rendered by the use of informal language. The case law denotes unresponsively to ‘loss of amenity’, ‘letdown’ and ‘injury to beliefs’ without making any effort to evaluate whether such words are applied in the same wisdom or stand for different kinds of 1oss. This was the outcome of the case Rookes v Barncird [1964].101 While claiming damages for Psychiatric Illness, there are two preconditions that need to be fulfilled. The first one is a Recognisable Psychiatric Illness which in the words of Lord Bridge is: “The first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.”112Any “recognisable psychiatric illness” will serve,123 and restitution has been rendered in the past for morbid depression,134 as well as hysterical personality disorder,145 post-traumatic stress disorder etc. Normally medical proof is required to demonstrate that the plaintiff has endured a recognisable psychiatric illness. The second precondition is foreseeability of the psychiatric illness that is looked at ex post facto in the light of all that has happened. Unless retrospection is used, as per Lord Jauncey “[t]he question ceases to be whether it is foreseeable that a reasonably robust person would have suffered psychiatric illness as a result of what actually happened and becomes instead whether it is foreseeable that such a person would have suffered psychiatric illness as a result of what might have happened but did not in fact do so.”156 In Hinz v Berry, a person suffered from severe grief and sorrow that did not come under the group of a recognised psychiatric illness and hence was not able to recover damages. The reason stated was that a person can be able to cope with grief. Cooke (2005) states that: “To succeed in a tort of negligence action, the claimant must prove three factors. Firstly, the defendant owed them a duty of care. Secondly, the defendant was in breach of that duty. Thirdly, the claimant suffered damage caused by the breach.” Defamation: Defamation means defiling the status of someone. It is separated into two parts, slander and libel. Slander is verbal defamation and libel is defaming somebody through print or broadcasting. (Wright. 2001). In the present era, the legal difference between libel and slander has been constricted. Defamation cases regard libel, and modern writers use the term "defamation" to identify both libel and slander. Defamation consists of a defamatory statement published to third parties which the speaker or publisher knew or should have known was false (Abbott, 2001). Injury to repute can be devastating and continuing. If such harm is by the circulation of falsehoods, then in the best interest of the society an interest in facilitating redress should be allowed. Reputation does matter as stated by Lord Nicholls in Reynolds v Times Newspapers27matter. “Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. It should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed, choice, the electorate needs to be able to identify the good as well as the bad.”168 Defamation is a tricky and slippery field of law established on statutory instrument and English common law. No wonder it is known as a "peculiar tort". In Broadway Approvals, Ltd. v. Odhams Press, Ltd.,179 "The law of libel seems to have characteristics of such complication and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels." It was stated in the case as defamation tort law protects reputation and not feelings. The burden in a defamation shifts to the defendant to establish any of the following three defences i.e. truth (or justification), fair comment on a matter of public interest, or that it was made on a privileged occasion, unintentional defamation and consent.30 The law of defamation actually can be related back to ancient times, and even though it has developed considerably, modern stems are evident in its origins. The civil law version formulated from the Roman acto injuriarum, which concentrated on the “intentional and unjustified hurting of another’s feelings” more than damage to public reputation.181 Publishing of the insult augmented the trauma, but was not a demanded constituent of the offence. The common law action developed out of the English ecclesiastical courts’ collapse to deal adequately with defamation. Courts could command offenders to apologise, but victims often found such amends insufficient and called on to duels for contentment.192 While the common law defences to defamation render some shield to freedom of verbal expression, courts in modern times have recognised that they are time and again insufficient. A true statement cannot be considered to be defamatory, but needing a defendant to establish truth confronts an obstruction to free expression. Evidence decrees are strict, and journalists fear being obliged to disclose their sources. “Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public.” 203 Pointing out on the conventional defences, one court wrote, “The balance is tilted too far against free communication and the need to protect the efficacious working of representative democracy and government in favour of the protection of individual reputation.”214 Thus courts have to develop new ways to defend expression in an effort to shift the balance the other way. In current cases, they have brought in new defences or polished old ones. Sometimes tort law imposes too much liability as well. For example in the case of Hedley Byrne v Heller225 in which it was decided that a bank can be made liable when it passes negligent information without considering as to whether it was a regular customer. It was decided that the bank has a duty of care which in this case has been over looked and caused economic loss to the customer. The present law for Economic loss, Psychiatric injury and wrongful life and Defamation under tort imposes too little liability. The present deficiency of any effort to examine the implication of this area of harm in tort law is not in agreement when compared to contract law, as stated by Lord Justice Bingham in Wutts v Morrow.236 His Lordship’s legal opinion has contributed constitution and inevitability to contractual assertion for mental hurt, even though the affect of the House of Lords’ judgment in Ruxley Electronics and Construction Ltd v Forsyth247 and the implication of consumer excess opinion258 have still questionably to be settled.269 There is no corresponding decision in tort. This is barely astonishing, even though there is no common treatment for these heads amid the different torts. Also it cannot be stated that no principle can be detected giving cohesion and clearness to these heads of damages. Thus we can conclude by stating that liability under tort law under the three heads is too little. References Books: 1. Bruce, Feldthusen. 1989.”Economic Negligence.” Carswell. Pp. 10-11. 2. Bussani, Mauro, and Vernon Valentine Palmer (editors). 2003. Pure Economic Loss in Europe. Cambridge: Cambridge University Press. 3. Cooke, J., 2005. “Law of Tort.” 7th Edition. Pearson: Essex. 4. Gregory A. Abbott, Esq. 2001. “Elements of Libel and Slander” retrieved from http://www.abbottlaw.com/defamation.html on 24th April 2010. 5. John C. P. Goldberg, Anthony J. Sebok & Benjamin C. Zipursky. 2004. “Tort Law: Responsibilities and Redress.” Aspen Publishers. 6. Kidner, R., 2006. “Casebook on Torts.” 9th Edition. Oxford University Press: Oxford. 7. Markesinis and Deakin's. 2003. “Tort Law” (5th Ed.). OUP: p.509. 8. Mullany, N. J. and Handford, P. R. 1993. “Tort Liability for Psychiatric Damage.” Sydney. Law Book Company. 9. Steven, Shavell. 1987. “Economic Analysis of Accident Law” Harvard University Press. 10. Wright. 2001. “Tort Law and Human Right.” Hart Publishing, Journal Articles: 11. John C.P. Goldberg. 2005. “The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs” Yale Law Journal 524: pp.541–51. 12. Stapleton, J. 1994. “In Restraint of Tort” in P Birks (ed), The Frontiers of Liability. Vol 2: pp 94-96. Websites: 13. http://www.lse.ac.uk/collections/law/news/libel.pdf (retrieved on 24th April,2010) 14. http://www.lawteacher.net/tort-law/lecture-notes/defamation-lecture.php accessed on 24th April, 2010. Read More