The basic principles of tort
A Jolly Contrarian guide to loving thy neighbour™
A tortious standard, redolent of snails, ginger-beer, and volumes of the 1932 Appeals Cases so well-worn that they fall open at page 562.
So if I am navigating my punt and I hit yours, and it sinks, then I have caused you a loss. Since I didn’t have a contract with you — you are, in the vernacular, a “random” — the law must decide whether I should nevertheless be liable to pay you compensation.
The common law does this by:
- Prescribing the kind of relationship between randoms that give rise to obligations (whether they are “neighbours” – people whom one should reasonably anticipate might be affected by one’s careless punting), and
- If they are neighbours, describing what is my general “duty of care” to them.
This duty of care was to behave like (if you’ll excuse the dated vernacular) a “reasonable man”. Someone who is prudent, thoughtful and considerate without being a saint. Famously described as “the man on the Clapham Omnibus”. In A. P. Herbert’s immortal words,
- “Hateful as he must necessarily be to any ordinary citizen who privately considers him, it is a curious paradox that where two or three are gathered together in one place they will with one accord pretend an admiration for him; and, when they are gathered together in the formidable surroundings of a British jury, they are easily persuaded that they themselves are, each and generally, reasonable men.”
The ladder of liability
In some strands of legal endeavour (notably in the criminal law and the tortious world of civil wrong-doing, one’s mental state is important in assessing one’s responsiblity; in others (principally the cool and dispassionate law of contract) it is — for the most part — not.
Where the inadvertent is blameless, neither knowing the risk she runs, nor being reasonably expected to be able to anticipate it; and the negligent has some civil, civic responsibility for what befalls his neighbour on the premise that, since that odious hypothetical fellow plucked from the pews of the sacred Clapham omnibus would have seen it, so should he, even though in point of fact he did not; the grossly negligent is a poor, confused, careless American; the reckless sees the risk, all right, and decides to plough on and take it, notwithstanding, that she might have no particular wish or expectation that a calumny should befall anyone, least of all the plaintiff.
Now the standards as between crimes and torts diverge. We know at one end are the innocent, faultless lambs, at the other wanton brigands; but how the varying stages between fit together is by no means clear. We have had a half-hearted go, but be warned, it was a Friday afternoon, and we got approached knock-off time we swiftly lost interest. This is probably a good example of negligence.
Right, where’s that beer?
|Neither intended, wanted, foresaw, nor can reasonably have been expected to foresee the calamity that in fact came about. Had no bearing on any duties, implied or explicit, arising between us.
|A reasonable person in that position would have foreseen the incipient calamity which would come about by following this course of action, but our hero, in actual fact, did not. Ergo, an unreasonable person.
|You have agreed to do something, received consideration for it and, whether by accident or design, you didn’t do it. This is the contractual equivalent of negligence: you had a duty, and you fell short of it.
|You have agreed to do something, received consideration for it and, on purpose, you didn’t do it. (This is the same as default, by the way. No-one cares why you didn’t do it).
|Even a faintly moronic person in that position would have foreseen the incipient calamity which would come about by following this course of action but our hero in actual fact did not. Ergo, a stridently moronic person. Unclear how there is room for this in a contract given normal default and the already redundant wilful default.
|Our hero did foresee the incipient calamity and, while not wanting it, boxed on regardless.
|Not only foresaw the calamity but acted fully intending it to come about.
- This use of the word “calculation” might upset some tort lawyers, for in legal terms to be “calculated” means expected to happen as a matter of probability, rather than mendacious design. Odd, really.