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TORT'S HIERARCHY OF PROTECTED INTERESTS

Published online by Cambridge University Press:  03 March 2022

John Murphy
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Abstract

It is widely accepted that tort law operates according to a hierarchy of protected interests. Some commentators suggest that this hierarchy can be put to dispositive uses in cases characterised by a clash of interests held respectively by the claimant and defendant (the inferior interest giving way). Others argue that thinking in terms of a hierarchy of interests sheds light on three unusual aspects of tort law: viz. the existence of torts that are actionable per se, the existence of strict liability torts, and the existence of actions in which injunctive relief is routinely awarded even though compensatory damages are tort law's default remedy. This article tests both claims. It concludes that an intuitively appealing hierarchy of interests can be identified, and that it might well possess dispositive significance all other things being equal. But it also observes that all other things are seldom equal, and that departures from the hierarchy occur for various reasons that can be clearly identified and which should be borne in mind when thinking about its dispositive utility. It also urges caution in making connections between the status of certain interests and the fact that they are protected by torts that are actionable per se, strict liability torts and torts in connection with which injunctions are awarded almost as a matter of course.

Keywords

protected interestsstrict liabilityactionability per seinjunctions
Type
Articles
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The Cambridge Law Journal , Volume 81 , Issue 2 , July 2022 , pp. 356 - 383
Copyright
Copyright © Cambridge Law Journal and Contributors 2022

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Footnotes

*

Professor of Law, Lancaster University. I am grateful to David Ibbetson for helpful discussion of the historical material in this article. I am also indebted to Paul Davies, Jodi Gardner, William Lucy, Craig Pursehouse and the anonymous referees for their helpful comments on various drafts. Above all, I am grateful to Peter Cane who corrected some minor misreading of his work, and made other helpful suggestions.

References

1 O'Sullivan, R., “A Scale of Values in the Common Law” (1937) 1 M.L.R. 26, 38CrossRefGoogle Scholar.

2 London and Blackwall Railway Co. v Cross (1886) 31 Ch. D. 354, 369. For the argument that reparative damages constitute the default remedy in tort, see J. Gardner, “Torts and Other Wrongs” (2011) 39 Florida State Univ. L. Rev. 52. For doubts, see J. Murphy, “The Heterogeneity of Tort Law” (2019) 39 O.J.L.S. 455.

3 It is sketched explicitly in Cane, P., The Anatomy of Tort Law (Oxford 1997)Google Scholar. But it is also implicit in Chapters 2 to 4 of his Tort Law and Economic Interests, 2nd ed. (Oxford 1995). The telling omission in the latter is any treatment of personal injuries (omitted since they did not fit Cane's definition of an economic interest: ibid., at 5).

4 For clarity, I use the notion of a “departure from the hierarchy” in connection with situations where third-party interests (or other factors) are treated as relevant. And I use the phrase “inversion of the hierarchy” where the only interests at stake are those belonging to C and D. Where a departure occurs, this is not because (normally inferior) interest X is treated as trumping (normally superior) interest Y, but because interest X in combination with a third party's interest (or other relevant factor) trumps interest Y.

5 If, within tort A, the usual standing of interests X and Y is departed from (or inverted), and no other tort can be invoked in place of tort A, then on the particular facts that enliven only tort A, it is possible to say not just that tort A reorders the standing of the two interests but that tort law as a whole does this.

6 See Murphy, J., “Rights, Reductionism and Tort Law” (2008) 28 O.J.L.S. 393Google Scholar.

7 Weir, T., A Casebook on Tort, 10th ed. (London 2004), 6Google Scholar, emphasis in original.

8 E.g. he speaks of “the differing values of the interests in health, things and wealth”: ibid., at 7.

9 It is not, however, a matter on which he was always completely silent. E.g. he elsewhere committed himself to the relative unimportance of financial interests saying: “in the hierarchy of proper values wealth, especially corporate wealth, is simply not as important as the well-being of the individual and does not deserve equal protection”: T. Weir, Economic Torts (Oxford 1997), 9–10.

10 McBride, N.J., The Humanity of Private Law (Oxford 2019), 124Google Scholar.

11 Ibid., at 129.

12 Cane, Anatomy.

13 The one that comes closest to it in terms of detail is getting on for 100 years old: see O'Sullivan, “Scale of Values”.

14 Ibid., at 90.

15 Ibid.

16 Cane does not expressly say they appear in descending order of importance. But this may reasonably be inferred from the fact that actionability per se and strict liability—features he treats as indicative of an interest's value—are readily associated with the personal interests that begin his list, but increasingly alien to the interests which follow.

17 Cane, Anatomy, 123–66.

18 He does advert briefly—under the banner “countervailing interests”—to several defences designed to protect D's private interests; and he argues also that freedom of contract can be considered a countervailing interest insofar as it entitles D to create by bargain an exemption from liability: ibid., at 92–94. Davies, too, explains the defence of justification in the accessory liability setting in this way: Davies, P., Accessory Liability (Oxford 2015), 230–34Google Scholar. But neither author offers a general claim about the hierarchy's dispositive function.

19 Cane, Anatomy, chs. 3, 5.

20 Thus, whereas “[t]he basic remedy for misappropriation of real property is an order for possession… [i]n the case of chattels … this happens only rarely”: ibid., at 145. He also argues that private property is generally more highly valued than commercial property. In large part this is anchored to the fact that the Defective Premises Act 1972 allows claims for the cost of repair of defective premises but only so long as they were “dwellings”: ibid., at 166, emphasis added.

21 Under section 1(8) of the 1984 Act, damages are available if trespassers suffer personal injury but not if they suffer only damage to chattels. Under section 2 of the 1979 Act, negligence liability resulting in death or personal injury cannot be excluded by contract, whereas—under certain circumstances—this is possible in respect of other losses.

22 [1898] A.C. 1, 72. There are very clear echoes of this in O'Sullivan, “Scale of Values”.

23 Sturges v Bridgman (1879) 11 Ch. D. 852, 863.

24 Collins v Wilcock [1984] 1 W.L.R. 1172, 1177.

25 Stevens, R., Torts and Rights (Oxford 2007), 21CrossRefGoogle Scholar.

26 J. Goudkamp and D. Nolan, Winfield and Jolowicz on Tort, 20th ed. (London 2020), 106.

27 See e.g. McBride, Humanity of Private Law, 131: “the tertiary good of having and making money is not important enough … to justify my owing you a general duty to take care not to cause you to suffer pure economic loss”; Carty, H., An Analysis of the Economic Torts, 2nd ed. (Oxford 2010), 4–5CrossRefGoogle Scholar: “in the hierarchy of interests … economic interests come lower than physical integrity, property rights/enjoyment and reputation.”

28 See e.g. Beever, A., Rediscovering the Law of Negligence (Oxford 2007), 267Google Scholar; P. Benson, “The Basis for Excluding Liability for Economic Loss in Tort Law” in D.G. Owen (ed.), Philosophical Foundations of Tort Law (Oxford 1995), 444; Stapleton, J., Three Essays on Torts (Oxford 2021), 46CrossRefGoogle Scholar.

29 Cane, Economic Interests, 106.

30 See Weir, Economic Torts, 2: “A person's contractual relations are the source of his income … and his future income depends on his maintaining or renewing or entering fresh contracts.”

31 McBride, Humanity of Private Law, 78.

32 Stevens, Torts and Rights, 89.

33 [2011] UKSC 12, [2012] 1 A.C. 245, at [64]. The latter part of this remark is a quotation from Murray v Ministry of Defence [1988] 1 W.L.R. 692, 703.

34 Cane, Anatomy, 142.

35 G.C. Keating, “Strict Liability Wrongs” in J. Oberdiek (ed.), Philosophical Foundations of the Law of Torts (Oxford 2014), 299.

36 Ibid., at 298, emphasis added.

37 Ibid., at 311.

38 The idea of a “vertical tort” is borrowed from Descheemaeker. They are torts “shaped with reference to the [particular] interest which the law is trying to protect”: Descheemaeker, E., “Protecting Reputation: Defamation and Negligence” (2009) 29 O.J.L.S. 603, 603Google Scholar. Such torts contrast with “transversal wrongs”, like negligence, which are “not defined (either directly or indirectly) in terms of protected interests”: ibid.

39 Cane, Anatomy, 45.

40 Ibid., at 100.

41 Waddams, S., Dimensions of Private Law (Cambridge 2002), 177–78Google Scholar, emphasis added.

42 Note: non-compliance with an injunction may result in imprisonment.

43 Arguably, injunctions mark out as special the interest they protect insofar as such protection may come at a cost not just to D but to society more generally. E.g. a patent protected by an injunction will not just prhobit the manufacture of copycat products by D, it will also undermine consumer choice. (Conversely, the availability of injunctions to protect patents promotes innovation which may ultimately benefit consumers.)

44 Hunter v Canary Wharf Ltd. [1997] A.C. 655, at 706 (Lord Hoffmann).

45 Ibid., at 706–07.

46 N.J. McBride and R. Bagshaw, Tort Law, 6th ed. (London 2018), 399.

47 Hunter [1997] A.C. 655.

48 Ibid., at 706.

49 Goudkamp and Nolan, Winfield and Jolowicz on Tort, 466.

50 In Miller v Jackson [1977] Q.B. 966, at 984, Geoffrey Lane L.J. held there to be negligence by virtue of the fact that “there was no way in which they [the defendants] could stop balls going into the [claimants’] premises in Brackenridge from time to time”. Although this case therefore recognises that it may be negligence simply to run a particular factory at a specific location, this is not true of all factories run in all locations.

51 Private nuisance requires an unreasonable interference with C's rights (and D's unreasonable user will be relevant here). But unreasonable interferences do not require negligence. A carefully run industrial plant might well constitute an unreasonable user of land without D acting negligently. As Lord Goff explained, in nuisance, “the defendant will be liable, even though he may have exercised reasonable care and skill to avoid [the interference]”: Cambridge Water Co. Ltd. v Eastern Counties Leather plc [1994] 2 A.C. 264, 299.

52 Deakin and Randall, for example, specifically consider intimidation to be tied to the protection of “trade, business or employment interests”: S. Deakin and J. Randall, “Rethinking the Economic Torts” (2009) 72 M.L.R. 519, 552.

53 See e.g. McBride and Bagshaw, Tort Law, 669–73.

54 Deakin and Randall, “Rethinking the Economic Torts”, 520. For a sustained refutation of the supposed basis for this stance, see Murphy, J., The Province and Politics of the Economic Torts (Oxford 2022)CrossRefGoogle Scholar.

55 Carty, Analysis of the Economic Torts, 1.

56 Under the Supply of Goods and Services Act 1982, s. 3, there is an implied term a person who supplies a service in the course of a business will “carry out the service with reasonable care and skill”. The Act clearly applies to dentists, see e.g. NHS Commissioning Board v Vasant [2019] EWCA Civ 1245, [2020] 1 All E.R. (Comm) 799.

57 Compare Allied Maples Group Ltd. v Simmons & Simmons [1995] 1 W.L.R. 1602 (loss of a chance of a financial benefit recoverable) and Gregg v Scott [2005] UKHL 2, [2005] 2 A.C. 176 (claim for a reduced chance of recovering from cancer not permitted).

58 Weir, T., An Introduction to Tort Law, 2nd ed. (Oxford 2006), 80CrossRefGoogle Scholar.

59 For the avoidance of doubt, I suggest nothing about the soundness of the law in this context. I simply note that, here, where C is deprived of the chance to avoid a pure financial loss tort law tort allows recovery, while this is not so where C is deprived of the chance to avoid pain and suffering.

60 In Coventry v Lawrence [2014] UKSC 13, [2014] A.C. 822, at [161], Lord Sumption said: “[t]here is much to be said for the view that damages are ordinarily an adequate remedy for nuisance and that an injunction should not usually be granted in a case where it is likely that conflicting interests are engaged other than the parties’ interests.”

61 Coventry v Lawrence [2014] UKSC 13, at [124].

62 Polkinhorn v Wright (1845) 8 Q.B. 197, 206.

63 [1973] Ch. 447, 456.

64 In one case it was made clear that no theft is required. Wrongful detention, it was held, amounts to the “the same violation of the right of property as the taking of the chattels out of the actual possession of the owner”: Blades v Higgs (1861) 142 E.R. 634.

65 Patrick v Colerick (1838) 150 E.R. 1235.

66 Anthony v Haney (1832) 131 E.R. 372, 374 (obiter).

67 See text associated with notes 32–34 above.

68 For Weir, for example, “there are some rights whose mere invasion is actionable even if it causes no damage. These are the most important rights”: Weir, Casebook on Tort, 7.

69 (1765) 95 E.R. 807, 817.

70 Goudkamp and Nolan, Winfield and Jolowicz on Tort, 406. See in very similar vein, M. Jones (ed.), Clerk and Lindsell on Torts, 23rd ed. (London 2020), 1382: “[t]he reason for this principle [ie, the tort's actionability per se] seems to be that acts of direct interference with another's possession are likely to lead to breaches of the peace.”

71 Milsom, S.F.C., Historical Foundations of the Common Law (Oxford 1981), 305Google Scholar.

72 See Ibbetson, D., A Historical Introduction to the Law of Obligations (Oxford 2000), 2Google Scholar.

73 J.S. Beckerman, “Adding Insult to Iniuria: Affronts to Honor and the Origins of Trespass” in M.S. Arnold et al. (eds.), On the Laws and Customs of England: Essays in Honor of Samuel E Thorne (Chapel Hill 1976), 178.

74 Murray v Ministry of Defence [1988] 1 W.L.R. 692.

75 Ibid., at 703: “The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage.”

76 See Weldon v Home Office [1990] 3 W.L.R. 465; R. v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 A.C. 58; Roberts v Chief Constable of Cheshire [1999] 1 W.L.R. 662; ID v Home Office [2005] EWCA Civ 38, [2006] 1 W.L.R. 1003.

77 It is true that in Collins v Wilcock [1984] 1 W.L.R. 1172, 1177, Goff L.J. invoked Blackstone's claim that “every man's person being sacred … no other having a right to meddle with it, in any the slightest manner” (W. Blackstone, Commentaries on the Laws of England, 17th ed. (Oxford 1830), 120). But it is also true that a Westlaw search reveals that this passage has received hardly any endorsement in subsequent tort cases. Even more starkly, a similar Westlaw search reveals that Lord Camden's statement about the sacred nature of “the property of every man” (see text associated with note 69 above) has never once been reiterated in any subsequent tort case.

78 Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (Report 123) (Brisbane 2014), paragraph 8-40.

79 Wennhak v Morgan (1888) 20 Q.B.D. 635, 637 (Manisty J.).

80 There may be good grounds for a privilege in such circumstances; but the idea that there is no publication to a third party is clearly outdated.

81 Admittedly, defamation is not always actionable per se: slander generally requires proof of special damage.

82 Cane, Anatomy, 73.

83 Ibid., at 112–14.

84 Pollock considered this a mistake, saying: “[t]he law went wrong … in making the damage and not the insult the cause of action”: Pollock, F., The Law of Torts, 13th ed. (London 1929), 249Google Scholar.

85 King v Sir Edward Lake 145 E.R. 522, 523, emphasis added.

86 Just because there was no need to prove harm does not mean damage was irrelevant. It is just that, in libel, such damage was presumed. The fact that damage is presumed, however, in no way affects the claim in the main text, namely, that its being actionable in the way that it is has nothing at all to do with a putative analogy between property and reputation.

87 See e.g. D & L Caterers Ltd. v D'Ajou [1945] K.B. 364, 367. There is a slightly different, but substantively equivalent, formulation in the Defamation Act 1952, s. 2: “calculated to disparage a man in his office [etc.].”

88 Cane, Anatomy, 131. The thinking runs thus: ease of suit equates to added protection for the interests concerned which in turn equates to an augmentation in the value of those interests.

89 Ibid., at 140.

90 Ibid., at 134, emphasis added.

91 [1910] A.C. 20.

92 McBride, Humanity of Private Law, 245.

93 Mitchell, P., A History of Tort Law 1900-1950 (Cambridge 2015), 153Google Scholar. He elsewhere attributes part of the explanation for the introduction of strict liability to “a succession of historical accidents and confusions”: see Mitchell, P., “Malice in Defamation” (1998) 114 L.Q.R. 639, 663Google Scholar.

94 In the House of Lords, only Lord Loreburn supplied a reasoned judgment (albeit one that ran to only two pages in length). In his view, the reason for there being no need to show fault or malice on the part of D could be expressed thus: “[i]f the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in considering whether it is defamatory of the plaintiff”: [1910] A.C. 20, 24.

95 Ibbetson, Historical Introduction, 58. Saying “formally the case” is important because, sometimes, juries managed to soften the strictness of liability by showing sympathy towards defendants who acted without fault.

96 M.S. Arnold, “Accident, Mistake, and Rules of Liability in the Fourteenth-century Law of Torts” (1979) 128 U. Pa. L. Rev. 361, 377–78.

97 (1466) 79 Y.B.M 6 Edw. IV 4, f. 7, pl. 18.

98 Ibid.

99 If C steps on land which he believes is his own, this in no way exonerates the trespass committed against C (to whom the land actually belongs): Basely v Clarkson (1682) 3 Lev. 37.

100 Cane, Anatomy, 149.

101 Waddams, Dimensions of Private Law, 178.

102 Ibid., at 141, emphasis added.

103 See e.g. Egan v Egan [1975] Ch. 218 (injunction granted to a mother whose son repeatedly subjected her to violent attacks).

104 See text associated with notes 54, 55.

105 See e.g. Govia Thameslink Railway Ltd. v ASLEF [2016] EWHC 1320 (Q.B.), [2016] I.R.L.R. 686.

106 See e.g. P.W Lee, “Inducing Breach of Contract, Conversion and Contract as Property” (2009) 29 O.J.L.S. 511, 524; R. Bagshaw, “Inducing Breach of Contract” in J. Horder (ed.), Oxford Essays in Jurisprudence, 4th ed. (Oxford 2000), 133–37; R. Epstein, “Inducement of Breach of Contract as a Problem of Ostensible Ownership” (1987) J.L.S. 1, 19–20; S.M. Waddams, “Johanna Wagner and the Rival Opera Houses” (2001) 117 L.Q.R. 431, 444; W. Anson, Principles of the Law of Contract (Oxford 1879), 199.

107 OBG Ltd. v Allan [2007] UKHL 21, [2008] 1 A.C. 1, at [39].

108 Basely v Clarkson (1682) 3 Lev. 37.

109 Note, however, the interest protected by passing off—i.e. goodwill—was not clearly articulated until the decision in AG Spalding & Bros v AW Gamage Ltd. [1915] R.P.C. 32. Prior to that, the House of Lords had both expressly denied that there was a property right at stake in passing off cases, yet still allowed injunctions to be granted: see Reddaway v Banham [1896] A.C. 199, 209–10.

110 See e.g. Joyce v Sengupta [1993] 1 W.L.R. 337; Cruddas v Calvert [2015] EWCA Civ 171, [2015] E.M.L.R. 16.

111 Overwhelmingly does not imply exclusively; and the tort is in principle capable of providing a remedy for other types of loss: see J. Murphy, “The Vitality of Injurious Falsehood” (2021) 137 L.Q.R. 658, 670–75.

112 Ratcliffe v Evans [1892] 2 Q.B. 524, 533.

113 Chamberlain v Boyd (1883) 11 Q.B.D. 407, 412.

114 Kaye v Robertson [1991] F.S.R. 62, 68.

115 Carty, Analysis of the Economic Torts, 220, emphasis added.

116 [1965] A.C. 269.

117 Ibid., at 339.

118 The same is true of unlawful means conspiracy which, likewise, serves preponderantly to protect economic interests: see Lonrho Plc v Al-Fayed (No 5) [1993] 1 W.L.R. 1489, 1502.

119 Miller v Jackson [1977] Q.B. 966, 980: “[t]he books are full of cases where an injunction has been granted to restrain the continuance of a nuisance. But there is no case, so far as I know, where it has been granted so as to stop a man being negligent.”

120 Wilson's and Clyde Coal Co. v English [1938] A.C. 57.

121 See further Murphy, J., “Rethinking Injunctions in Tort Law” (2007) 27 O.J.L.S. 509, 523–24Google Scholar.

122 Dworkin, R., Law's Empire (Cambridge, MA 1996), 255Google Scholar.

123 Ibid.

124 For Dworkin, “[l]aw as integrity … insists that legal claims are interpretive judgments and therefore combine backward- and forward-looking elements”: ibid., at 225.

125 Ibid., at 227, emphasis added.

126 Cane, Anatomy, 131, emphasis added.

127 Dworkin, Law's Empire, 227.

128 Ibid., at 52.

129 Ibid., at 255.

130 This section of the article seeks merely to identify the relevant factors. I offer no comment on whether they are all good things for courts to consider.

131 Cane implicitly acknowledges this fact when he observes that “not all of the interests protected by tort law are protected against all of the types of sanctioned conduct”: Cane, Anatomy, 28. But he does not consider assiduously the ramifications of this for the stability of the hierarchy he constructs. That he does not do so, however, should not be seen as a criticism, since his principal aim was not to defend the hierarchy of protected interests he adumbrates, but to argue for a novel way of understanding tort according to the three elements of protected interests, sanctioned conduct and sanctions.

132 [1897] 2 Q.B. 57. In 2016, new life was breathed into this tort by the Supreme Court which held, among other things, that the tort contained a mental element comprising an “intention to cause physical harm or severe mental or emotional distress”: O v Rhodes [2015] UKSC 32, [2016] A.C. 219, at [87].

133 Negligence is a failure to meet an objectively determined standard of conduct. Thus, although in common parlance negligence is often treated as synonymous with carelessness, this is not the case within the law of torts.

134 It is, admittedly, much easier to do this where one is a primary rather than a secondary victim.

135 Loosely, primary victims are those persons in physical danger of being injured themselves by D's negligence; secondary victims are those who witness injury to others (without themselves being imperilled): see Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310, 407, 411.

136 Goudkamp and Nolan, Winfield and Jolowicz on Tort, 118.

137 Stevens, Torts and Rights, 308–10; Beever, Rediscovering the Law of Negligence, 52–54; Weinrib, E.J., The Idea of Private Law (Cambridge, MA 1995), 220–21Google Scholar.

138 For some discussion of this, see Stapleton, Three Essays on Torts, 26.

139 In his summary of the early case law in this area, Lord Bridge once observed that the only influential policy considerations in view “appear to have sprung from the fear that to cross the chosen line would be to open the floodgates to claims without limit”: McLoughlin v O'Brien [1983] 1 A.C. 410, 433–34.

140 [2003] UKHL 53, [2004] 2 A.C. 406, at [46].

141 It even sometimes sends out mixed messages. For example, the strictness of liability in defamation might be thought indicative of the high value attached to reputations. By contrast, the fact that there is just a one year limitation period for such actions tends to indicate the opposite.