Introduction to Tort Law
I. Books and other Reading
The best textbooks are:
C Witting, Street on Torts 16th edn (Oxford: OUP, 2021).
J Goudkamp and D Nolan, Winfield and Jolowicz on Tort 20th edn (London:
Sweet and Maxwell, 2020)
In neither Hong Kong, nor England and Wales, is there a specialist law
journal dealing solely with tort law.
There are two specialist journals based in Australia, the Tort Law Review
and the Torts Law Journal, but they tend to populated by articles written
by Australian authors with a focus on the law of torts in Australia.
Information about law journals
The journals that I believe regularly contain the best work for our
purposes, mindful that HK tort law is based preponderantly on the English
law of torts, are these:
Cambridge Law Journal (CLJ)
Law Quarterly Review (LQR)
Legal Studies
Modern Law Review (MLR)
Oxford Journal of Legal Studies (OJLS)
For the more ambitious among you, lecture handouts will sometimes make
reference to work published in these journals.
NB A Note about the Nature of the Journals
Articles published in the OLJS and MLR often have a largely theoretical
dimension to them. This is especially so of the OJLS. Articles in the CLJ
and LQR tend to have a practical and/or doctrinal dimension to them.
Articles in Legal Studies do not seem to have any especial characteristic
though entirely theoretical papers are relatively rare in this journal.
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II The Meaning of Tort and the Place of Torts within
the Civil Law
A. Definition
If asked to define tort, one is faced with a difficult task: it simply means
“wrong”.
The better question may be: What amounts to something tortious? And a
respectable working answer might be:
In tort law, a plaintiff, P, will have a cause of action if either (i) she
has had her rights infringed or (ii) incurred non-trivial loss, injury
or damage caused (generally) by certain sanctioned conduct on the
part of a defendant, D.
B. The Place of Torts within the (Civil) Law
If you feel the above definition doesn’t help you much, another clue as to
tort law’s ambit can be obtained by stripping away from the civil law
what torts are NOT.
- They are not contractual wrongs.
- They are not actions concerned with unjust enrichments.
This exercise narrows things down a little, but it suffers from two
defects: (1) it suggests a mutual exclusivity between the categories that
doesn’t really exist; (2) it doesn’t tell us what unifies torts.
So what do we know for sure? Perhaps this:
The infliction of loss is not the be all and end all in tort law. It is
NOT simply a body of law concerned with compensating for harm
or losses that have been suffered by P. A more accurate guide is
that tort law is principally about the unlawful infringement of
private rights and the consequential losses associated with those
rights infringements.
The rights-based account of tort law has been defended by a number of
scholars with varying degrees of rigour. The best work in the area is
probably:
R Stevens, Torts and Rights (Oxford: OUP, 2007).
A Beever, A Theory of Tort Liability (Oxford: Hart Publishing,
2016).
J Goldberg and B Zipusrky, “Torts as Wrongs” (2010) 88 Texas Law
Review 917.
2
E Weinrib, “Understanding Tort Law” (1989) 23 Valparaiso
University Law Rev485.
A Ripstein, Private Wrongs (Cambridge, Mass: Harvard University
Press, 2016).
I don’t think that the rights thesis provides an entirely satisfactory (ie,
complete) account. Reasons why can be found here:
J Murphy, “Rights, Reductionism and Tort Law” (2008) 28 OJLS
393.
J Goudkamp and J Murphy, 2. “The Failure of Universal
Theories of Tort Law” (2015) 21 Legal Theory 47-85.
J Goudkamp and J Murphy, “Tort Statutes and Tort Theories” (2015)
131 LQR 133-160.
J Murphy, “The Heterogeneity of Tort Law” (2019) 39 OJLS 455–
482.
C. Within the Civil Law of Torts
Torts are civil wrongs. The subject is made up of a rather disparate
confederation of loosely affiliated causes of action that often differ—the
one from the other—in very substantial ways.
1. Intentional Torts, Fault-based Torts and Strict Liability Torts
There are torts that require intention: eg, trespass to the person.
There are instances of pure fault-based liability: eg, the tort of
negligence.
There are instances of strict liability: eg, when the principle of
vicarious liability is invoked.
There are intermediate cases where liability is neither entirely
strict, nor entirely fault-based: eg, under the law of private
nuisance.
I can live with this “mess”, but a lot of modern tort lawyers (especially
those with theoretical leanings) try to find way of seeing harmony and
simplicity in tort law.
Happily for you, their work is too challenging and too peripheral for most
tort novices, so we won’t explore their claims in any depth in this course.
2. Common Law and Statutory Sources
Some tort rules are statutory. Most, though, stem from principles of
judge-made law. Torts is, then, overwhelmingly a common law subject.
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This is not a problem. The statutory interventions are usually confined to
a particular matter and there are not (ordinarily) competing, alternative
statutory and common law rules to consider.
If you are still confused, there is good reason.
Wittgenstein once said: “It is impossible to paint a clear picture of a fuzzy
object”. Tort is—for the novice—just such a fuzzy object.
BUT rest assured, as we progress through the course its contents and
contours will become clearer.
NB None of the academic works listed in THIS document can be said to
be vital reading. All of them have the potential to enrich your grasp of
tort law. But there can be no guarantees that they will do so. For many
students, some if not all of these works will simply prove too challenging
and impenetrable. SO, if you do attempt to read them and simply get
confused (or just plain nowhere), don’t worry. They were not primarily
written with a student readership in mind.
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Diagram Representing the Place of Torts Law in the Law
Public Law Private Law
Administrative Law Property Law
Constitutional Law Law of Obligations
Criminal Law Equity
Law of Succession
Family Law
etc
Law of
Obligations
Law of Contract
Law of Unjust Enrichment
Law of Torts
Law of Torts
Some Major Torts
Negligence
Defamation
Conversion
Intimidation
Conspiracy
Occupiers’ Liability
Inducing Breach of Contract
Trespass to Land
Trespass to the Person
Trespass to Chattels
Nuisance
Rule in Rylands v Fletcher
Other Aspects
Vicarious Liability
Defences 5
© John Murphy
August 2023
