As we await the outcome of our election with dread or hope (according to

taste) I thought I'd distract myself by looking at the torts books on my

shelf.

I can usually tell whether I am going to like a textbook on torts from the

first page, indeed usually the first sentence.

Those of us who are not beginners tend to skip over the start of

textbooks, but I think they are very helpful in setting out the author’s

attitude to the subject.

So McBride & Bagshaw (the English textbook I think is now the best,

because it is true and comprehensive, despite their annoying habit of

putting substantive stuff in footnotes rather than just references) starts

“A tort is a form of civil wrong.”

Quite right in my view (see also, after some history, the very sadly

defunct Salmond & Heuston p 8, and the first sentence of Steve Hedley's

smaller book). But compare the following first sentences

Markesinis & Deakin, Tort Law (6th ed.) p.3

“Today the law of tort (sic) is mainly, though by no means exclusively

concerned with ‘accidents’ arising in countless ways.” (Compare the first

sentence of the first edition which went under a different, and better,

title with different authors : “Torts are wrongs remedied by civil actions

as distinct from criminal proceedings”)

I have similar difficulties with

J Fleming, An Intro to The Law of Torts (2nd ed) p.1

“The toll on life, limb and property exacted by today’s industrial

operations, methods of transport and many other activity benignly

associated with the modern way of life has reached proportions so

staggering that the economic cost of accidents represents a constant and

mounting drain on the community’s human and material resources. The task

of the law of torts is to play an important regulatory role in the

adjustment of these losses and the eventual allocation of their cost.”

Big Fleming is, from my viewpoint, better, but even there the second

paragraph opens “Perhaps the most profitable method of delimiting the

field of tort liability is to describe it in terms of the policies which

have brought it into existence.” (See also Linden & Feldthuesen p. 2;)

Luntz et al ( a great book in many ways) first gives a definition of a

tort (Prosser’s) on page 75 (!) and even there precedes it with the caveat

“there is no general principle of compensation lying behind the whole law

of torts.” Some books, Harper, James and Gray for example never bother to

define their subject at all, as far as I can see.

I am also not very keen on the start of

M Jones, Textbook on Torts (8th ed) p.1

“The law of torts is primarily concerned with providing a remedy to a

person who has been harmed by the conduct of others.”

or

D Howarth, Textbook on Tort p. 3 (not the first sentence)

“’torts’ are shorthand names for fact patterns that give rise to liability”

These definitions seem to me to skip over the nature of torts as being

civil wrongs (ie breaches of duties owed to other people), focusing

instead on the conduct and the harm, and this is confirmed by the

surrounding text.

Perhaps the most frustrating are those who write books about subjects they

don’t seem to think exist, so:

Winfield & Jolowicz (17th ed) p.1

“Numerous attempts have been made to define “a tort” or “tortuous

liability” with varying degrees of lack of success.”

or

 Street on Torts (12th ed) p. 12

“[A] satisfactory definition of tort remains largely elusive.”

Or, most amusingly,

Weir, Tort Law 2nd ed (p. ix in the preface)

“Tort is what is in the tort books and the only thing holding it together

is the binding.”

If any of this were true, why are the author’s bothering to write about

it? (Is it the royalties?) How do they work out where to begin and end?

Clerk & Lindsell is better

“Torts are civil wrongs ..” (para 2)

 but the surrounding text doesn’t take this seriously, see for example the

title of the opening chapter, “Principles of Tort Liability” and the

heading of the deinition, “The Nature of Tort Liability”. If we

substitute the word “wrong” for “tort”, “Principles of Wrong Liability”

and “The Nature of Wrong Liability” is, at best, clumsy.

best

Rob

> On behalf of Jane Stapleton:

>

> Dear Stephen

> Of English tort books none is better than Michael Jones Textbook on Torts.

> Though the latest edition was published some years ago (what is OUP

> thinking!!!) I still find it an invaluable resource full of insightful

> deeply-learned analysis and thorough coverage. My American colleagues also

> think as highly of it as I do.

> Best

> Jane

>

> --

> Jason Neyers

> Associate Professor of Law

> Faculty of Law

> University of Western Ontario

> N6A 3K7

> (519) 661-2111 x. 88435

>

--

Robert Stevens

Professor of Commercial Law

University College London