chapter
now possible to give a whole course on the law of tort simply on the basis of doctrinal writing about theories supposedly underpinning the law of tort (Weir [1992] CLJ 388). English law is similar to Roman law in that the law of tort and the law of restitution rest on a few basic principles. What takes up the pages is the application and interpretation of these principles. In fact, because of the importance of method when it comes to analysing the facts of tort and unjust enrichment problems, many of the cases relevant to this chapter have already been set out in the chapters on remedies and methodology. This chapter and the next are, accordingly, more concerned with bringing these cases together under the law of obligations heading in the hope of illustrating the institutional structures that underpin these decisions. All the same, despite the development of contract, tort and now restitution as rational categories through which the cases can be understood, it is important to remember that the law of remedies still dominates. It is, therefore, vital to relate tort and restitution, as Lord Goff and others recognise (see below), not just to their historical foundation in the forms of action, but to the law of remedies in general (Chapter 3). The starting point for tort is always in the nature of the damage, for this can determine not just the cause of action, but also the intensity of the duty. The starting point for the law of restitution is, in contrast, the notion of benefit or profit. Is this a profit or benefit which ought in justice to be retained? What is the cause of the damage or the profit? A Romanist can certainly appreciate the symmetry between tort and restitution, even if the common law cannot always appreciate the differences between its very own remedies of debt and damages (see, for example, Auld LJ in Friends’ Provident, p 239). THE LEGACY OF THE FORMS OF ACTION
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Lord Goff:… The situation in common law countries, including of course England, is exceptional, in that the common law grew up within a procedural framework uninfluenced by Roman law. The law was categorised by reference to the forms of action, and it was not until the abolition of the forms of action by the Common Law Procedure Act 1852 (15 & 16 Vict c 76) that it became necessary to reclassify the law in substantive terms. The result was that common lawyers did at last separate our law of obligations into contract and tort, though in so doing they relegated quasi-contractual claims to the status of an appendix to the law of contract, thereby postponing by a century or so the development of a law of restitution. Even then, there was no systematic reconsideration of the problem of concurrent claims in contract and tort. We can see the courts rather grappling with unpromising material drawn from the old cases in which liability in negligence derived largely from categories based upon the status of the defendant. In a sense, we must not be surprised; for no significant law faculties were established at our universities until the

late 19th century, and so until then there was no academic opinion available to guide or stimulate the judges…

Bryant v Herbert (1877) 3 CPD 389 Court of Appeal

(See p 114.)

Esso Petroleum Co Ltd v Southport Corporation [1953] 3 WLR 773 Queen’s Bench Division; [1954] 2 QB 182 Court of Appeal; [1956] AC 218 House of Lords

(See p 216.)

Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 Queen’s Bench Division

(See p 98.)