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1 The basics

1.1 The function of tort law 1
1.2 Rights and duties 2
1.3 The range of torts 5
1.4 Torts and wrongs 8
1.5 The importance of being a victim 10
1.6 The loss compensation model of
tort law 13
1.7 The residual wrongs model of tort
law 16
1.8 Tort law and contract law 17
1.9 Tort law and equity 19
1.10 Tort law and statute law 21
1.11 Tort law and criminal law 23
1.12 Tort law and property law 24
1.13 Tort law and strict liability 25
1.14 Insurance 27
1.15 Paying for tort law 29
1.16 Tort law as a foreign country 32
Overview
This is the only chapter in the book that does not begin with a section on ‘The basics’.
That is because the whole of this chapter is concerned with ‘the basics’ of tort law.
Section 1.1 explains the importance of tort law. Sections 1.2 to 1.4 are concerned to
get the reader going in understanding some of the basic concepts (such as rights, and
duties owed to another) and terminology (such as the names for different torts) that are
essential for any tort lawyer to understand. Section 1.5 deals with an important limit
on who may sue for a remedy when a tort has been committed. Sections 1.6 to 1.7
present two alternative views of tort law to the one presented in this book, and explain
why those views are inadequate. Having got some understanding of tort law’s territory,
we start to explore tort law’s relationship with some neighbouring areas of law in
sections 1.8 to 1.13. Sections 1.14 to 1.15 discuss the impact of tort law on the real
world – how tort law is paid for, and who pays for the fact that we have a system of
tort law. Section 1.16 aims to provide some reassurance for students starting off in this
subject: there is a lot about tort law that is unfamiliar and takes getting used to, but with
the right preparation it won’t take long before reasoning like a tort lawyer becomes
second nature to you.
1.1 THE FUNCTION OF TORT LAW
Tort law is one of the most fundamental legal subjects that you can study. This is because
the function of tort law is to determine what legal rights
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we have against other people, free
of charge and without our having to make special arrangements for them, and what
remedies will be available when those rights are violated.
In Donoghue v Stevenson (1932), Mrs Donoghue and a friend of hers went to a café in
Paisley, Scotland. Donoghue’s friend ordered an ice cream ‘float’ for Donoghue. Francis
Minchella, the café owner, served Donoghue with a tumbler of ice cream and an opaque
bottle of ginger beer. Minchella poured some of the beer over the ice cream to create the
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From now on, whenever we use the word ‘right’, we mean by that a legal right, not a moral right.