English Tort Law Imposing Liability Law Essay

This essay will address the question by exploring cases dealing with occupiers liability, vicarious liability and psychiatric harm. I intend to focus on narrow aspects within these three areas of law allowing a deep critical analysis. Occupier’s liability, in my opinion, is an area of law that imposes too much liability in cases involving trespassers. I don’t doubt that there must be liability for the homeowner who invites someone onto their land and fails to provide a safe environment which is seen in statute such as the Occupier’s Liability Act 1957, “… duty to take such care as in all the circumstances…to see that the visitor will be reasonably safe in using the premises.” [1] However, tort law insists that an occupier can be held liable for personal injury suffered by trespassers because of the state of the land and this is where I believe the Occupiers Liability Act 1984 [2] takes the principle of the 1957 Act and stretches it too far. My first critique of this aspect of tort law is the conflict it has with criminal law. It seems incoherent that in a criminal court a home owner whose land has been trespassed on, perhaps by a burglar, will be considered the victim and duly have the sympathy of the court and yet be cast in the role of villain in a civil court. Leon Green describes how an occupier will, “insist[ing] upon the intruder’s own wrong and…invoke[ing] his own immunity from any duty to exercise active care in behalf of a trespasser.” [3] He then goes on to say, “Assuming the intruder to be a wrongdoer, the landowner’s position would seem unassailable.” [4] This journal dates back to 1917 before statute had imposed occupier’s liability but the sentiment holds true. Why should the victim be held accountable for the criminals’ injuries in cases where there has been no active action on the part of the occupier? The ‘negligent’ state of the land and arising liability should, in my opinion, be limited to lawful visitors and trespassing children, who cannot be held to the same standard as adults, if only for policy reasons. A clear message needs to be sent to unlawful visitors; crime does not pay. Why recompense them in any way from an illegal venture? Not only does it not dissuade criminal behaviour it is also wholly unfair to impose this liability on a home owner.

Additionally, I would argue that when comparing occupier’s liability to other areas of tort law, such as pure economic loss, it becomes clear that comparatively occupier’s liability allows too much liability. The case of Weller & Co. [5] established that a person cannot claim for pure financial loss if that loss is unaccompanied by physical damage. It seems reprehensible that innocent victims of negligence cannot claim damages from those whose, “shoulders are broad enough to bear the loss,” [6] and yet homeowners can be held liable for the injuries of trespassers. Tort law insists that innocent victims of pure economic loss must accept the financial loss as ‘bad luck.’ Why is this principle not extended to trespassers? Those who trespass on land with the intent to commit a crime cannot claim to be innocent of the misfortune that may befall them. This awareness combined with the illegality of the act is enough in my opinion to put any injury that befalls a trespasser down to ‘bad luck’ with, in my opinion, no liability to the homeowner. If tort law will not help the innocent it seems foolish that it is so willing to help the guilty and this yet another reason why I believe tort law imposes too much liability.

Furthermore, I believe there is too much tortuous liability for occupiers’ in this area of the law and this can be seen in the conflict with the absolutist nature of property law. This view is seen in Semaynes’ case: “The house of everyone is to him as his castle and fortress.” [7] This principle has always come with certain restriction as English property law has never recognised total dominion over land. The 1957 and 1984 Occupiers liability acts impose a safe standard of maintenance of property. However, I put forth the argument that a landowner who has paid for the privilege of a property right should not be compelled by the law to prevent trespassers being injured. Property law does not enforce positive covenants as they are considered an erroneous duty, why then, “…should the occupier, who is doing nothing, bestir himself to look out for the safety of those who come upon his premises? Why should they not look out for themselves, as they would do anywhere else, except as to negligence of those pursuing an active course of conduct.” [8] I believe this burden should be alleviated and that occupiers should be allowed to spend their money, not on lawsuits, but on their property. Surely that is the prima facie benefit of owning land? Insisting that occupiers are liable for trespassers does not sit well with the absolutist history of English property law as it presupposes that money be spent in a certain way to prevent injury. I do not believe tort law should add further restrictions to property that is already subject to the laws of planning permission, restrictive covenants, nuisance etc. I believe tort law imposes too much liability and needs to strike a better balance with occupiers’ property rights.

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Another area of tort law where there is too much liability, in my opinion, is vicarious liability for employers. I am not challenging the belief that employers should be liable for their employers, to an extent, however I do believe greater limitations need to be put in place as employer liability is far too expansive. The law currently insists that employers are liable for any tortuous act committed by their employees as long as the act is within the scope of employment. Even in cases where the employer has done his utmost to prevent any negligent behaviour from his employee the law still holds him accountable such as in the case of Whatman v. Pearson. [9] Vicarious liability is an important aspect of tort law, as employer insurance means the claimant has a higher chance of being paid damages. However I struggle to accept an area of the law that so transparently undermines the crucial principle of causation. The law has had trouble establishing what employers should be liable for and I believe to make liability just and fair, vicarious liability should only apply in cases where the employer had some measure of control over the actions of the employee for example, authorising the act. Acts that involve the work environment but are actually entirely removed from the employers scope of awareness, for example the fraudulent dealings of the defendants in Lloyd v. Grace, Smith & Co. [10] , would therefore fall outside the employers’ scope of liability. This would allow for fairness for the employer, something which I believe has been disregarded in the development of vicarious liability, because as it is the law imposes too much liability in this area.

Moreover, I believe that tort law imposes too much liability in placing the burden of liability on the employer as this reduces the employee’s accountability for his actions. The practice of indemnity is in place but prima facie, vicarious liability effectively negates an employee’s legal culpability as despite sharing liability damages are most likely to come from the employer’s insurance. Legal theory has taught us that laws play their part in shaping social dynamics and surely what is needed to improve society are laws that ensure people are held responsible for their actions. The practice of vicarious liability, though coherent regarding policy reasons does not deal with the human reality of being legally and socially culpable for one’s actions. It seems to me that vicarious liability is yet another area of the law that supports the notion of ‘passing the buck’ and the way to reduce acts of negligence is to hold the actual tortfeasors, the employees, financially responsible. Take the Japanese model of employer liability as described by Joseph Sanders and Lee Hamilton, “Japanese law stresses individual responsibility for corporate crime and rarely holds the organization responsible.” [11] As long as employees are aware that any tort of negligence they commit during the course of employment will be recoverable from the employer they will never be inclined to be diligent to the best of their ability. It is for this reason I believe that tort law imposes too much liability on employers.

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I believe the area of psychiatric injury is one area of tort law where there is far too little liability. For a claim regarding psychiatric injury to be actionable the claimant must have either been a primary victim who was a foreseeable victim of psychiatric or physical injury or a secondary victim who meets various criteria. These criteria are laid down in Alcock v. Chief Constable of South Yorkshire [12] and are that there is a loving bond with the claimaint and the primary victim, proximity to the accident and that the psychiatric injury occurred as a result of seeing or hearing the accident with eyes and ears. Secondary victims have to jump through hoops to prove they deserve recompense for a psychiatric injury and this seems to suggest that the judicial system does not hold psychiatric injury in the same regard as physical injury. The law commission states, “although psychiatric illness is often more debilitating than physical injury, the message conveyed by the prevailing rules is that mental and emotional wellbeing are of less account than physical integrity.” [13] Perhaps the recalcitrance of the tort system to consider psychiatric injury as equal to physical injury, and therefore increase liability, is because of the residual stigma associated with psychiatric injury as well as the fear of floodgate liability. Whatever the reason, a system that differentiates between the two forms of injury is in my opinion a flawed system as both are forms of injury that should be dealt with uniformly. Lord Lloyd remarks that, ‘there is no justification for regarding physical and psychiatric injury as different “kinds” of injury,” [14] and yet the liability for both forms of injury is still imbalanced.

Furthermore, why should different rules apply to ‘primary’ and ‘secondary victims’? Should forseeability, causation, establishment of harm etc not be the core principles in establishing liability? As H. Teff states, in distinguishing between primary and secondary victims tort law, “allows artificial criteria to displace the more natural question: should the defendant be liable to the plaintiff in all the circumstances?” [15] I believe tort law offers too little liability by erecting false barriers that prevent victims from attaining damages. Cases such as Alcock [16] and White and Others v. Chief Constable of South Yorkshire [17] are evidence of the unfair system at work. Both cases involve innocent victims who were denied damages as liability was not imposed because crude, superficial criteria were not meant. As long as the harm to the victim was caused by the defendant and the damage to the victim was foreseeable then I do not believe there should be any differentiation between primary and secondary victims. The flaws of tort laws attempt to make a distinction between between primary and secondary victims is summed up by H. Teff who states, “Instead of discriminating against foreseeable “secondary” victims, the law should reflect the fact that, often, the altruistic source of their reactions makes them at least as deserving as many “primary” victim” Until the current legal system looks to a new and fairer model of liability regarding psychiatric injury the liability imposed will never be enough.

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Another fault with the tort system in how it deals with psychiatric injury is that the limits imposed for liability are too restrictive and the reasons behind the restrictions not particularly persuasive. The law refuses to relax the criteria for liability with no real explanation as to why bar a fear that laxer criteria will open up the floodgates of litigation. However H. Teff, referencing B.F. Hoffman [18] and the Law Commission, Consultation Paper [19] , explains why he does not think this is a real cause for concern, “The enduring, if diminished, stigma associated with psychiatric illness inhibits many would-be claimants, and the risk of exposure through increasingly refined techniques of psychological assessment has reduced the risk of undeserving claimants succeeding on the strength of loose medical definition.” [20] So if one accepts that the floodgate argument, for imposing such rigid criteria before there can be criteria, is unsound then one must also accept that the current law imposes too little liability as a result.

Furthermore, many of the criteria regarding psychiatric injury are archaic and arbitrary. For example, Mullany noted that, “The psychiatric literature does not allow the assertion that the impact of trauma is inevitably more severe if directly perceived” [21] and yet tort law has stubbornly held onto the criteria that the event causing injury must be perceived with the senses, refusing to allow development and change in line with new understandings of psychiatric illness. Cane argues, ‘how can we justify a rule which requires mentally traumatized people to go to court and prove that they have strong feelings of love and affection towards another?” [22] The old attitudes to psychiatric harm are no longer justifiable and so a criterion that is insensitive to the needs of those suffering injury must be criticized and adjusted. The criterion that the event causing psychiatric harm must be “sudden” [23] again seems arbitrary, a rule designed for no other purpose but too limit liability. Harvey Teff argues, “The law’s current stance effectively penalises those whose illness involves a more prolonged reaction to an event or events closely connected with the defendant’s negligent conduct.” [24] These are but a few of the criteria imposed before there can be liability and I believe they serve to show that as Harvey Teff states, the current rules are, “At odds with psychological reality, amount(ing) to no more than unprincipled line-drawing. [25] 

I have attempted to give both sides of the question equal attention and in doing so this has led to me to the conclusion that one cannot say tort law as a whole imposes too much or too little liability. I believe that psychiatric injury is too restricted in its liability and vicarious and occupier’s liability are too expansive. In these areas I believe reform would be welcome however one must recognise that no legal system is perfect and the tort system could be far worse.

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