chapter  2
In 1897, a judge recognised a general right not to be physically harmed by an intentional (malicious) act of another (Wilkinson v Downton, p 640). But this would seem not to be reducible to a general pre-existing ‘duty’ (Stubbings v Webb [1993] AC 498, p 508). However, in Donoghue v Stevenson, the House of Lords recognised a general duty of care not carelessly to injure another. It would appear, then, that English law has moved some way towards a general non-contractual obligation for physical damage based upon fault (Letang v Cooper [1965] 1 QB 232; cf CC, Art 1382). Damage is usually the starting point of tort (but cf defamation); however, economic loss presents problems when it comes to the tort of negligence and breach of statutory duty (and see Birse Construction v Haistie, p 617). With respect to liability without fault (liability for people or things under one’s control), it is by no means easy to establish any general principle similar to CC, Art 1384. The decision in Rylands v Fletcher (p 660) could have acted as the basis for such a general principle, but the House of Lords has consistently refused to develop any such strict liability principle (Read v J Lyons and Co, p 662; Cambridge Water v Eastern Counties Leather, p 665). The result is that the UK law is out of line with many of its EU partners. Tort thus remains a rather fragmented subject protecting a whole range of different interests and, as a result, it is impossible to think in terms of a general theory (as the notes that follow indicate; and see, in particular, Chapter 7). 3 ‘We have had several compendious theories as to the law of tort. Lynxeyed predecessors who noticed that a tort suit often resulted in a transfer of funds from the defendant to the plaintiff inferred that it was the purpose of tort law to effect such transfers: the more transfers the better, or tort was being false to its purpose. This was especially true if the defendant could spread the loss, very thinly like jam, so that no one could taste it… An appropriate basis for discriminating between plaintiffs would be according to whether they were the victims of misfortune or of mismanagement, of bad luck or of bad behaviour, that is, whether they have just a pain or a grievance as well, whether we can say of them that, the world being what it is, they should not have been hurt… The purpose of fault would be to determine not who must pay but who may claim, to distinguish between plaintiffs rather than between defendants. And we would also distinguish according to the nature of the harm in issue, and make the law reflect society’s proper value judgments by letting people recover more easily in respect of personal injury than financial harm, and for property damage only if it also represented financial loss to them…’ (Weir, ‘Governmental liability’ [1989] PL 40, pp 62–63). Is fault a realistic criterion for determining who should receive compensation in road accident cases? Was Mrs Donoghue the victim of misfortune or of mismanagement—of bad luck or of bad behaviour?
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