I. Introduction
It is widely thought that there exists within tort law a discernible hierarchy of protected interests that can help illuminate at least two important things. The first is the way a case will be decided when superior interest X (held by one litigant) comes into conflict with inferior interest Y (held by the other litigant). According to proponents of this view, the case will be decided in favour of the first litigant they have the superior interest. As Richard O'Sullivan once put it: “the Common Law habitually uses a certain scale of objective values, the lesser of which it is ready to subordinate, and on occasions even sacrifice, to those of a higher rank.”Footnote 1 I shall call this the dispositive function of the hierarchy. The second thing that the hierarchy is thought to illuminate is the relationship between certain interests and the fact that there exists (1) a small number of torts that are actionable per se, (2) another (largely overlapping) set of torts that are actionable on a strict liability basis, and (3) a third group of torts in which injunctive relief is routinely available, even though, “prima facie you do not obtain injunctions to restrain actionable wrongs [where damages would be an adequate remedy]”.Footnote 2 As we shall see, some commentators think that these three curious features help explain the hierarchy, while others think it is the other way round. But either way, there is a perceived link between the three features and the status of the particular interests protected by the relevant torts. I shall therefore refer to thinking in terms of a hierarchy in this connection as its explanatory function.
This article explores how reliably tort's hierarchy of protected interests fulfils the two functions just mentioned. Section II begins by sketching, in rudimentary fashion, the different values ascribed to the various interests recognised by tort law. It then proceeds to several slightly more elaborate claims (all of which are broadly similar in tenor) before finally alighting upon (and borrowing) what is by far the most sophisticated account of what the hierarchy of protected interests looks like: the one advanced by Peter Cane.Footnote 3 In Section III, I sound two cautionary notes. The first of these concerns the extent to which we can safely think in terms of a clear-cut and inflexible hierarchy. In other words, I reflect in this context on whether (for any two interests) we can unswervingly claim that “interest X will trump interest Y”. The doubts raised here are anchored to numerous departures from – and even sometimes inversions ofFootnote 4 – the hierarchy such that, despite their usual standings, interest Y will sometimes take precedence over interest X (with no facility to invoke, just as easily, a different tort which abides by the usual ordering of these interestsFootnote 5).
The second cautionary note concerns the extent to which the putative explanatory function is in fact grounded. Thus, I question both the idea that the hierarchy constitutes the source of the three peculiar features, and also the suggestion that these unusual features help prop up the hierarchy.
In Section IV, the principal reasons that lie behind departures from, or inversions of, the hierarchy are identified. These, we will see, include variations in the moral culpability of D's wrongdoing, evidential problems associated with certain types of claim, antecedent wrongdoing on C's part and, in some cases, judicial worries about the potential consequences of a decision (including the effect of a decision for third parties’ interests). Section V concludes.
II. The Hierarchy: A Brief Sketch
Interests, for present purposes, may be regarded as assets which, when threatened, damaged or destroyed by another's tortious conduct confer upon the asset holder (i.e., the claimant) the right to bring an action in tort. Although these interests are often capable of being described in terms of rights (such as the right to bodily integrity, or the right to one's reputation), this is not universally true.Footnote 6 At the same time, the notion of “tort's protected interests” is not so wide as to include many other interests we have – such as our interest in having a fiscally responsible government. This article is concerned only with those of our interests that may ground an action in tort.
Although many jurists signal their support for the idea that there exists a hierarchy of protected interests, the level of detail in which such support is expressed varies considerably. Take, for example, the following claim made by Tony Weir:
There are several good things in life, such as liberty, bodily integrity, land, possessions, reputation, wealth, privacy, dignity, perhaps even life itself. Lawyers call these goods interests … but they are not all equally good … Because these interests are not equally good, the protection afforded to them by the law is not equal: the law protects better interests better.Footnote 7
The trouble with Weir's remark is that it provides no real guidance on the relative goodness – or, as he elsewhere describes it, valueFootnote 8 – of the various interests identified.Footnote 9 It does not, therefore, shed much light on what the hierarchy looks like despite his claims that the interests “are not all equally good”, and that the law protects some of them more than others.
A much fuller account of the interests protected by private law (which of course includes tort law) has been proffered by Nicholas McBride. Unlike Weir, McBride does rank each of the interests that he identifies; but he still only does this according to a three-tiered classification of “primary goods”, “secondary goods” and “tertiary goods”.Footnote 10 Accordingly, by McBride's own admission, things get tough from a dispositive perspective when D's primary good comes into conflict with a different primary good belonging to C. Such a case, he thinks, is irresolvable: for, when faced with the question, “how do you choose between different people's enjoyment of the primary goods, the answer is that you don't: you attempt to find a compromise”.Footnote 11
In marked contrast to the foregoing stands Cane's depiction of the hierarchy of protected interests in The Anatomy of Tort Law.Footnote 12 It comprises by far the most elaborate and sophisticated exposition of the various interests protected by tort law.Footnote 13 In compiling it, Cane is guided by the observation that, across tort law, “the protection given to some interests … [is] stronger than that given to others”.Footnote 14 And it is this variation in the degree of protection afforded, he maintains, that “implies that tort law values some interests more highly than others”.Footnote 15 With this animating pair of thoughts to the fore, he sedulously constructs a hierarchy comprising (in discernibly descending order of importanceFootnote 16) six broad categories: interests in one's person, property interests, contractual interests, non-contractual expectancies, trade values and purely financial interests.Footnote 17 Notably, unlike Weir and McBride, Cane does not commit himself wholeheartedly to the idea that the hierarchy fulfils a dispositive function.Footnote 18 But this does not detract from his rendition of it providing a highly detailed account of the relative value afforded to the many different interests that he identifies.
As just a soupçon of the detail, interests in one's person can, according to Cane's scheme, be broken down into physical interests, dignitary interests and the interest we all have in freedom of movement. Similarly, property interests can be divided into rights over real property, interests in relation to chattels and rights in relation to intangible property. And so it goes on in relation to each of the successive broad categories of interests that he discusses.Footnote 19 But this is no mere exercise in listing. Within the category of property interests, for example, Cane deduces from the fact that interests in real property are more highly protected than “mere” chattels that the former are more valuable in the eyes of tort law.Footnote 20
In terms of intuitive appeal, Cane's scheme has a great deal going for it. There is obvious attraction, for example, in regarding our personal interests as the most valuable of all. If one were tasked with constructing a law of torts from scratch, one would almost certainly begin by creating a series of wrongs designed to protect a person's physical and mental well-being, as well as, probably, their liberty. Furthermore, there is concrete support from the legislature and the judiciary alike for the idea that these interests should be placed at the apex of the hierarchy. Both the Occupiers’ Liability 1984 and the Unfair Contract Terms Act 1979 give special legislative treatment to personal injury;Footnote 21 while in terms of judicial support, Lord Halsbury said in Allen v Flood that there exists
“no right in this country under our laws so sacred as the right of personal liberty. No right of property or capital, about which there had been so much declamation, was so sacred or so carefully guarded by the law of this land as that of personal liberty”.Footnote 22
Equally, whereas in private nuisance – a tort that protects proprietary interests – the claimant encounters the rule, de minimis non curat lex,Footnote 23 things are very different in trespass to the person. There, as it is trite to state, “any touching of another person, however slight may amount to a battery”.Footnote 24
There is also very considerable appeal in the idea that purely pecuniary interests are those that are least valuable in the eyes of the law. They are not invariably recoverable. Indeed, they may fairly be depicted as sitting right on the border between the compensable and the non-compensable (hence the description of the instances in which they may be recovered as “isolated islands” of liability in an “ocean of no-liability”Footnote 25). Donal Nolan and James Goudkamp are assuredly right to observe that “it is possible to detect in the cases a perception among judges that pure economic loss is less serious, all other things being equal, than physical damage”.Footnote 26 And it is a point that has been noted by many other jurists,Footnote 27 including those who regard tort law's limited protection of pure economic loss as an indicator of there being no general right to wealth or financial well-being.Footnote 28
At the same time, the idea that the middle ground is occupied by proprietary and contractual interests has similar intuitive appeal, as does Cane's assertion that the former are more highly valued than the latter. For him, “[t]he considerable breadth and depth of the protection afforded to various property interests … is matched by a powerful disinclination to provide significant protection for contractual interests”.Footnote 29 His saying this seems perfectly sensible; for, in general terms, contracts “only” provide the means by which we can improve our financial position in the world,Footnote 30 whereas (as McBride points out) interests in property offer much more, providing the gateway to “a huge range of beneficial activities that would not be possible in the absence of such interests”.Footnote 31 Simply put, property (unlike most contracts) provides considerably more than merely the facility to augment our pelf.
In the light of these observations, it is hard to deny from a dispositive perspective the immediate attractiveness of Cane's hierarchy. And there are certainly arguments, too, that can be marshalled in support of its putative explanatory function: the idea, that is, that thinking in terms of a hierarchy of protected interests sheds light on the three unusual features of tort law sketched earlier. We may conveniently begin with the first of these – the fact that certain torts (and in particular the trespass torts) are actionable per se. Notably, there is fairly widespread support for the view that the facility to sue without the need to prove tangible loss is bound up with the especial value that tort law affords to the interests concerned. Take, for example, Robert Stevens’ contention that
“[i]n principle, the division between wrongs actionable per se and those only actionable upon proof of consequential loss should reflect a choice between those rights which are, and are not, as a question of social fact sufficiently important to be deserving of protection irrespective of the consequences of violation”.Footnote 32
Lord Dyson made a similar remark in the false imprisonment case of R. (on the application of Lumba) v Secretary of State for the Home Department: he declared, the “[t]respassory torts … are actionable per se” because the “the law attaches supreme importance to the liberty of the individual”.Footnote 33 On top of this, the actionability per se of trespass to land has also been said to reflect the fact that “the law gives strong protection to the owner's right to control entry [onto their land]”.Footnote 34
Turning next to the second “unusual feature” – the fact that a handful of torts are actionable on a strict liability basis – there is again weighty academic support for the view that it is the importance of the relevant protected interests that explains things. In Keating's view, what is key is that these torts involve the infringement of “important autonomy rights”.Footnote 35 “Batteries, trespasses and conversions,” he maintains, “can all be committed without intending either the wrongs or the harms involved … because the rights in question are autonomy rights”.Footnote 36 It is, he adds, the “rights that they protect [that] require this strictness”.Footnote 37 Relatedly, for Cane, the absence of the need to prove fault in certain “vertical torts”Footnote 38 – i.e., those designed to protect just a single interest – “expresses the very high value which we put on [the interest concerned]” by “making it easy for people to recover”.Footnote 39
The idea that the third unusual feature – the largely routine availability of inunctions within a limited number of torts – may equally be said to hinge upon the value of the interests protected is also defended by some authors. For Cane, easy access to injunctive relief is to be found within torts designed to protect proprietary interests. And this, he maintains, “reflects the high value that tort law puts on interests classified as ‘property’ interests”.Footnote 40 Like-mindedly, Waddams argues that “a right that can never be enforced by injunction might plausibly be classified as something less than a proprietary right”.Footnote 41 Underpinning both contentions is the notion that the law provides the best possible protectionFootnote 42 to those things that we value most.Footnote 43
At least ostensibly, then, there is as much to ground the explanatory function of the hierarchy as there is to ground its dispositive function. But whether the hierarchy is as stable as first impressions would suggest, and whether there are alternative – perhaps even better – explanations concerning the three unusual features of tort law highlighted in the introduction, are matters that deserve closer inspection.
III. Limitations in the Hierarchy's Dispositive and Explanatory Functions
Although the idea that tort law has a discernible hierarchy of protected interests possesses much intuitive appeal, and although a fair array of primary sources may be cited in support of Cane's depiction of this hierarchy, there are nonetheless numerous aspects of tort law that are inconsistent with the idea that it can be a reliable guide to the way cases get decided. Some constitute fixed inversions of the hierarchy (in that, despite the usual ranking afforded to (ordinarily superior) interest X and (ordinarily inferior) interest Y, there are certain torts in which the former will give way to the latter). Other departures from the usual ranking of certain protected interests are also discernible here and there. But unlike the fixed inversions just mentioned, these additional departures occur only in certain circumstances. They can therefore be thought of as “contingent departures” from the hierarchy qua dispositive tool. As we shall see in Section IV, these contingent departures are explicable by reference to a range of factors – such as third-party interests – that are sometimes (but by no means always) in play.
As regards the putative explanatory function of the hierarchy, a close examination of various historical and other sources provides reason to doubt whether it genuinely is the importance of certain interests that explains why a number of torts are actionable per se, actionable on a strict liability basis, or conspicuously injunction-friendly. Instead, what emerges is a range of competing explanations that have little or nothing to do with the value of the interests protected by the torts in question.
A. Dispositive Limitations
Despite the obvious appeal of regarding interests in the person as our most valuable ones, and of considering proprietary interests as more valuable than our interests in either contractual performance or wealth more generally, it is clear that tort cases are not invariably decided by invoking the hierarchy as a dispositive tool. Indeed, there are so many fixed or contingent departures from (or inversions of) the hierarchy of protected interests that we must exercise caution in describing its usefulness as a guide to the way tort cases get decided. The qualification runs thus: the hierarchy should be considered no more than a starting point when it comes to resolving cases in which C's and D's respective interests collide. To appreciate why the hierarchy can constitute no more than a starting point, we must explore the numerous circumstances in which it will not reliably determine the outcome of litigation.
One such instance involves the tort of private nuisance where an inversion in the respective standing of a claimant's personal and proprietary interests occurs. This inversion can conveniently be illustrated by way of a hypothetical.
Suppose my neighbour uses her premises to run a factory which emits noxious fumes. If the fumes damage shrubs in my garden, then, as the owner of the land affected, I can invoke private nuisance to obtain damages. But if the fumes cause me a bronchial condition, my personal injury is not compensable under this tort. True, I can rely on private nuisance insofar as there is “injury to the amenity of the land [which] consists in the fact that the persons upon it are liable to suffer … illness”.Footnote 44 But this is not the same thing as obtaining compensation for the personal injury itself. Furthermore, if the land affected is owned jointly by me and my partner, and we both suffer bronchial illness, then the damages available are not doubled to reflect the adverse physical effect on both of us. This is because the diminution in the amenity of the land remains the same regardless of how many people become ill. According to Lord Hoffmann in Hunter v Canary Wharf Ltd, “where more than one person has an interest in the property, the damages will have to be divided among them”.Footnote 45 It is with such considerations in mind that McBride and Bagshaw conclude that, in this setting, “the law attaches greater importance to protecting people's land … than it does to protecting people's physical welfare”.Footnote 46
A possible rejoinder here is that the putative inversion of the standing of C's personal and proprietary interests is in truth illusory. For, the key point is not that private nuisance prioritises interests in land over personal interests, but that private nuisance is completely unconcerned with personal interests. This, after all, was a key component of the decision in Hunter.Footnote 47 However, the rejoinder, which relies on what was said in Hunter, soon runs aground, for this was not the only message to emanate from that case. At one point in his dictum, Lord Hoffmann stated:
in addition to damages for injury to his land, the owner or occupier is able to recover damages for consequential loss. He will, for example, be entitled to loss of profits which are the result of inability to use the land for the purposes of his business … [and] he may also be able to recover damages for chattels or livestock lost as a result.Footnote 48
Conspicuously, his Lordship did not include in the category of recoverable consequential losses a claimant's personal injuries. Noting this omission, Goudkamp and Nolan contend: “it is difficult to see why the same approach should not be taken in cases of personal injury.”Footnote 49 Yet, whatever may have been his Lordship's thinking, it is hard to deny that this case rendered private nuisance an area of tort law in which our interest in health and well-being receives less protection than the various proprietary interests protected by this tort.
One conceivable surrejoinder to the claim just made is that the putative shortcoming in private nuisance is negated by the fact that, in the scenario just sketched, an action for personal injury will lie, instead, under the law of negligence. If this were so, it could then be argued that tort law as a whole continues to provide suitable protection for our health, even if one has to look beyond the tort of private nuisance to find it. But the surrejoinder rests on flawed premises. A negligence action will only lie if either the factory owner failed to take reasonable care in running his works or it could be deemed negligent for him to have set up and operated a factory in that location in the near certainty that his running it would be a source of harm to a neighbour.Footnote 50 In the absence of any negligence of the second variety, any claimant suffering personal injury would have to prove a lack of reasonable care in running the works. And, crucially, this need to show an absence of care would not be required in private nuisance.Footnote 51 Accordingly, in some situations, it will inescapably be true that a claimant's proprietary interests receive greater protection than their interest in health and well-being.
A comparable inversion of the standing of rather different interests occurs within the sphere of the economic torts. As noted already, economic interests are widely thought to occupy the lowest rung on the ladder. Yet, within the context of the economic torts, such interests may well be afforded greater protection than other, ordinarily more valuable, interests even though it is easy to imagine ways in which those other interests could be infringed by conduct that results in economic tort liability. It seems obvious, for example, that the tort of intimidation (based as it is on unlawful threats) might affect our mental health. Yet it continues to be regarded by many jurists as a tort confined to the protection of economic interests.Footnote 52 It is almost as easy to imagine ways in which the torts of inducing breach of contract and causing loss by unlawful means might also cause serious, non-pecuniary losses.Footnote 53 Yet leading commentators continue to insist that all of these torts are intended to protect only economic interests. Deakin and Randall, for example, write:
The economic torts exist to govern market relations and in particular to police the competitive process; they do not, and should not, form the basis for a more general principle of tortious liability …. It follows that doctrinal coherence in the economic torts would be assisted by closer attention to the interests which they protect (substantial interests in a trade, business or livelihood).Footnote 54
Likewise, Hazel Carty claims that “the economic torts … have as their primary function the protection of economic interests”.Footnote 55 If this be right – if it be actionable, for example, for me to induce your stockbroker to break her contract with you, but not (all other aspects of the action being in place) for me to induce your private dentist to perform a tooth extraction without the care and skill required by lawFootnote 56 such that you suffer considerable pain – then another inversion of the usual ranking of two different interests can be said to arise by virtue of the narrow focus of the tort of inducing breach of contract. The investor's financial loss is recoverable from me, but the dental patient's pain and suffering are not.
Negligence law also provides evidence of the fluidity of the hierarchy. As is well known, it possible to invoke this tort to recover damages for the loss of a chance of financial benefit, but not for the loss of a chance of avoiding a particular medical condition.Footnote 57 In what was doubtless an attempt to justify this position, Weir once wrote:
in cases of financial harm it is enough to show that the claimant had a chance of gain which the defendant has probably caused him to lose. There is nothing irrational in this …. Losing a chance of gain is a loss like the loss of the gain itself, alike in quality, just less in quantity: losing a chance of not losing a leg is not at all the same kind of thing as losing the leg.Footnote 58
Yet pointing out that the loss of a chance of a financial gain is of the same type as the loss of an actual financial gain, is not per se a justification for allowing such a claim. Nor does it explain why recovery for loss of a chance of financial gain is permissible while the loss of a chance of avoiding pain, suffering or a deterioration in the state of one's health is irrecoverable. Instead, what Weir proffers is a mere observation. And observations and justifications are very different beasts. A justification would explain why this form of economic loss is compensable while the loss of a chance of retaining the use of a leg is not.Footnote 59
Leaving aside these fixed inversions of the hierarchy, we may turn next to the various contingent inversions of, and departures from, the hierarchy that occur. We can conveniently start with a return to private nuisance. For, sometimes, where C seeks an injunction to restrain D from conducting a particular nuisance-causing activity, a court may afford less weight to C's proprietary interests than D's (or possibly a third party'sFootnote 60) countervailing interest, even though D's interest would ordinarily be regarded as being more lowly in kind. For example, D's financial interests may sometimes triumph over C's proprietary interest. As Lord Neuberger once put it: a defendant's interest in financial security may “justify the court refusing … an injunction”, if such an order would mean that “a defendant's business may have to shut down”.Footnote 61
Two further contingent departures from the hierarchy qua dispositive tool involve property rights. The first occurs where A's alleged tort is prompted by B's trespassing on A's land. Here, A may use reasonable force to evict forcibly the trespasser.Footnote 62 The conflict of interests is plainly between A's proprietary interest in exclusive possession, and B's personal interest in bodily integrity. Yet if B were to sue A for battery, B's interest in the non-violation of his bodily integrity would not trump A's countervailing proprietary interest. As Lord Denning MR explained in McPhail v Persons, Names Unknown:
[t]he owner is not obliged to go to the courts … He is entitled, if he so desires, to take the remedy into his own hands. He can go in himself and turn [the trespasser] out.Footnote 63
The second contingent departure from the hierarchy qua dispositive tool involves personal property. Where a chattel belonging to D came to be on C's land by unlawful means – for example, a conversion (including a good faith detentionFootnote 64) by C – D is entitled to enter C's land to recapture the chattel. Any subsequent trespass action brought by C against D will fail.Footnote 65 It was even suggested in one case that D's interest in (re)possessing the chattel will take precedence over C's right to the exclusive possession of his land where the chattel in question was placed on C's land by a thief acting independently of C.Footnote 66 Thus, although according to the putative dispositive function of the hierarchy sketched earlier, possessory interests in land will ordinarily be ranked higher than possessory interests in chattels, this will not unswervingly determine the outcome of a case. A prior wrong committed by C in relation to the chattel will result in D's interest in that chattel being protected at the expense of C's interest in the exclusive possession of land.
In combination, the various fixed and contingent inversions of, and departures from, the hierarchy compel us to recognise (1) that the ranking of the various interests within it is not set in stone for these purposes, and (2) that departures from the normal scheme come in various different forms. Property interests – which ordinarily occupy the second tier – can sometimes trump first-tier personal interests. But on other occasions they may give way to (lower tier) contractual interests or (even more lowly still) purely financial interests.
B. Explanatory Limitations
In the introductory section of this article, I flagged up two major claims concerning the hierarchy of protected interests. The first was that it fulfils a dispositive role (allowing clashes between competing interests to be resolved by reference to their respective standings). The second was that the hierarchy performs an explanatory function: i.e. it illuminates why certain torts are actionable per se, involve strict liability, or allow injunctions to be obtained with relative ease. In the first part of this section, I observed that the hierarchy cannot always be invoked as a reliable tool with which to resolve tort cases in which the respective interests of C and D collide. In this second part, I subject to scrutiny the extent to which it fulfils the explanatory function.
1. Torts actionable per se
Certain “vertical torts” are actionable per se. As noted already,Footnote 67 this characteristic (most readily associated with the various trespass torts), is sometimes said to be bound up with the high-ranking status of the interests they protect.Footnote 68 According to proponents of this view, the especial value associated with a particular interest is what justifies the merest infringement of that interest being actionable. But are things really so straightforward? Can we simply take at face value the occasional (as opposed to routinely recited) judicial assertion that a certain tort is actionable per se in view of the importance of the interest it protects? For two reasons, I would suggest that the answer is “No”. I say this, first, because there are certain uncontroverted aspects of English legal history that suggest other plausible bases for their being actionable per se. And I say it, secondly, because in relation to one form of slander, it would patently be a mistake to think that there is a correlation between the importance of the interest at stake and the facility to sue without having to prove harm.
Let us begin, however, with the trespass torts. We have already encountered Lord Dyson's claim in Lumba that actionability per se reflects the “supreme importance” of the interest protected. A similar remark was made in Entick v Carrington when Lord Camden said:
the law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does it is a trespass though he does no damage.Footnote 69
But at variance with this is an alternative (avowedly historical) reason referred to in two leading treatises on torts. In the words of one them, the actionability per se of trespass is linked to “earlier times [when] trespass was so likely to lead to a breach of the peace that even trivial deviations on to another person's land were reckoned unlawful”.Footnote 70 But with respect, this is not the true historical reason. It is rather that, before the advent of actions on the case, although claims in trespass routinely alleged that D caused loss to C, the assessment of damages was a matter for the jury. The loss was – to use the technical phrase – not traversable. It was not possible, in other words, for D to plead, “I admit that I punched C, but doing this caused C no loss”. It followed from D's inability to make such a plea that causation of loss was not part of the cause of action, not something that C had to prove in order for D to be held liable. Trespass, to put it plainly, was an action that – thanks to the separate tasks of judge and jury – was, right from its inception, actionable per se: “the only substantive concept was ‘trespass’ as ‘wrong’”;Footnote 71 and a wrong was done when D struck C, regardless of whether this caused any tangible harm.
Of course, it only takes us so far to note that “medieval culture seems to have been concerned more with dishonour than with loss”,Footnote 72 or that “English trespass derived its vocabulary of iniuria from Roman law … [and] was not concerned with damnum”.Footnote 73 But at least knowing this suggests a plausible reason why the trespass torts are still actionable per se, namely that actionability per se has remained a feature of these torts because no subsequent court has ever thought fit to remove it.
A second conceivable explanation is, however, possible. This is that some other reason for these torts remaining actionable per se has since emerged and eclipsed the historic one. One obvious candidate springs to mind. It is the idea portrayed in Lumba that actionability per se is nowadays justified by reference to the importance of the interest at stake (just as some hierarchy proponents suggest). So is there any compelling evidence of this having occurred? On the one hand, it is true that what Lord Dyson said was an approximate reiteration and endorsement of what had been said by Lord Griffiths in Murray v Ministry of Defence.Footnote 74 This would mean at least two Law Lords espousing the view. On the other hand, however, it is important to note the extent of the approximation here. For, unlike Lord Dyson, Lord Griffiths did not make reference to all the trespassory torts. Instead, he confined what he had to say about actionability per se to the specific tort of false imprisonment and, more importantly, the especial importance of our interest in liberty.Footnote 75 One might add to this the observation that all of the appellate court cases that have since invoked Lord Griffiths’ dictum, including Lumba, have also been false imprisonment cases.Footnote 76 So, given that Lord Dyson himself only mentioned the especial value of liberty, it cannot safely be said that the case law concerning battery or trespass to land offers any concrete support for the claim that it is the high-ranking status of our interests in bodily integrity and the exclusive possession of land that explains their being actionable per se as well.Footnote 77
A second alternative explanation for the enduring actionability per se of all of the trespass torts can be found in a report produced by the Australian Law Reform Commission on tortious invasions of privacy. This linked their actionability per se to the fact that the relevant torts protect intangible interests.Footnote 78 But conspicuous by its absence in the report is any authority in the case law for this claim. It too, therefore, offers no convincing modern rationale. Indeed, it is true to say that no such rationale can be said to have emerged in the case law for any tort other than false imprisonment.
In the absence of judicial authority to the contrary, then, I think there is good reason to take seriously the idea that true reason for certain torts being actionable per se is rooted in history. The reason may be archaic, but it is by no means unknown for rules of common law to endure long past the point where they still reflect prevailing social mores and expectations. For example, the rule in defamation that there is no publication to a third party where D says something to his own wife that is defamatory of C because “husband and wife are in point of law one person”,Footnote 79 seems plainly anachronistic to modern eyes.Footnote 80
Sticking with the tort of defamation, it is noteworthy that hierarchy-based arguments have also been offered to explain the actionability per se of this tort.Footnote 81 For Cane, the key to this being so resides in an analogy between reputation and property. He writes:
The plaintiff in a defamation action need present no evidence that his or her reputation was actually damaged. Conceptually, this is probably a result of viewing reputation as a form of property… [And] [a]n important feature of tortious liability for interference with property is that it is actionable without proof of actual damage to the property.Footnote 82
However, Cane's suggestion that defamation is actionable per se by virtue of this analogy is, again, not borne out by history. From the early sixteenth century, defamation emerged as an action that could be heard by the royal courts dealing with matters of common law, rather than (as hitherto), the ecclesiastical courts.Footnote 83 It did so as an action on the case in respect of which proof of special damage was required.Footnote 84 The first case in which a libel was held to be actionable per se was not decided until the late seventeenth century. In it, Hale C.B. specifically considered the need to show harm. He drew a crucial distinction between libel and slander saying, “although … words spoken once, without writing them or publishing them would not be actionable”, where they are “writ and published, which contains more malice than if they had but been once spoken, they are actionable”.Footnote 85 It was, therefore, the supposed malice involved in writing down a defamatory statement, not the high-ranking status, or property-like quality of reputation, that, for Hale C.B., justified libel's actionability per se.Footnote 86 Here, again, no modern, alternative explanations can be traced in the case law.
Nor can the actionability per se of slandering someone in their office, profession, calling, trade or businessFootnote 87 be linked to the value attached to C's reputation. The clear concern of this form of slander has always been to protect C's economic interest in making a living rather than his or her interest in having a good reputation. That being so, the putative link between actionability per se and the ranking of the interest at stake clearly breaks down.
2. Strict liability torts
In just the same way that it may be doubted (pace Stevens, Lord Dyson and others) that it is the intrinsic value of the interests protected that explains those torts that are actionable per se, so, too, is there reason to doubt whether it is inexorably true, as Cane asserts, that “interests protected by strict liability are more highly valued than interests protected by fault-based liability”.Footnote 88 It is certainly true that vertical torts involving the misappropriation of private property are typically ones of strict liability. And it is undoubtedly worth noting Cane's companion observation that “such ample protection … [reflects the fact that] private property forms the bedrock of our economic and social life”.Footnote 89 But notwithstanding their superficial appeal, such remarks provide no licence for ignoring other, equally (perhaps even more) compelling explanations for the existence of certain strict liability torts.
Take defamation again. This – along with the proprietary torts of trespass to land, conversion and passing off – is a strict liability tort. In Cane's view, the strictness of liability is also explicable by reference to the perceived similarity between reputation and property: “[r]eputation,” he avers, “is seen as analogous to property, and as a result liability for damage to reputation is very strict.”Footnote 90 McBride, however, takes a different view. He makes no link between the strictness of liability in defamation and the intrinsic importance of reputation. Rather, he points out, when strict liability for defamation was first introduced via the decision in E Hulton & Co. v Jones,Footnote 91 it was done “without legal justification and out of [judicial] malice towards the press”.Footnote 92 An essentially similar view is advanced by Paul Mitchell. He too identifies Hulton as the starting point for strict liability in defamation, and likewise argues that that case (along with several others that followed) make it hard “to avoid the conclusion that what was really driving the decision[s] [to make the tort one of strict liability] was the judges’ own views about the proper tone and appearance of a newspaper”.Footnote 93 What is certainly beyond doubt is that there is nothing in that landmark case to suggest it was the property-like quality of a person's reputation that justified the introduction of strict liability for defamation.Footnote 94 Thus, once one accepts the concrete evidence supplied by McBride and Mitchell for their “hostility to the press” explanation, it becomes hard to prefer Cane's understanding given that his understanding lacks any discernible judicial backing.
A similar story can be told be told about trespass to land. For right from its inception it was formally the case that “liability in trespass was strict rather than fault-based”.Footnote 95 As Morris Arnold explains:
“all the available evidence is that in fourteenth century trespass actions, civil liability was strict. It would be for a later age to invent the proposition that some showing of fault was ordinarily necessary in order to impose on an actor the duty to compensate.”Footnote 96
Nowhere in the cases from this period is there any suggestion that strict liability was justified because of the especial value of the interest at stake. Instead, insofar as anything was emphasised – and this was not the age of fully reasoned judgments – it seems to have been the fact that D had caused loss or damage to C. Importantly, such emphasis as there was did not stress that the loss be of a particular kind, or that it represent damage to a highly cherished interest. In his landmark decision in Hulle v Orynge – the so-called Case of Thorns in which D trampled C's crops while gathering up thorns he had cut down on his own land, but which had fallen onto that of his neighbour – Littleton J said simply that “if a man is damaged, that is reason that he be compensated”.Footnote 97 More expansively, Choke J. anchored the strictness of trespass liability to the absence of justification or inevitable accident. He made no mention at all of any need for fault. He said no more than this:
[W]hen he cut the thorns and they fell, this falling was unlawful …. And as to what is said about their falling against his will, that is no plea … [it being immaterial] that he could not have acted in any other way.Footnote 98
The strictness of liability in this tort has never gone away.Footnote 99 And as with defamation, there is nothing in the modern cases to suggest that the justification for its being a strict liability tort can nowadays be identified in the importance attached by the law to the exclusive possession of land.
3. Torts in which injunctive relief is readily available
In the same way that the hierarchy of protected interests seems not to supply a very convincing explanation of why some torts are actionable per se, or actionable on a strict liability basis, so too does the hierarchy provide a less-than-compelling rationale for why injunctions are so freely available in certain torts, when in theory they ought not to be granted unless damages would constitute an inadequate remedy.
To clarify, some scholars see injunctions as one of “the hallmarks of protection of property”,Footnote 100 hence the idea that there is a link between the availability of injunctions and the standing of the interest protected. Waddams goes so far as to state that “the willingness of the court to grant specific remedies, binding on third parties, may itself supply the principal reason for calling the plaintiff's interest ‘proprietary’”.Footnote 101 Doubtless, some hierarchy proponents would question this assertion. But even if they did, they would not resile from the claim that the easy availability of such orders reflects, as Cane puts it, the “the concern of the common law to preserve the rights of owners to the full”.Footnote 102 Again, however, close examination reveals that things are not quite so straightforward. For one thing, injunctions are not confined to the protection of proprietary interests. And for another, their being readily available in some torts is demonstrably not a product of the high-ranking status of the interests at stake. Both points warrant some elaboration.
It is easy to rebut not just the claim that injunctions are only available in connection with proprietary interests, but also its sibling – recited in Waddams's work – that their availability may constitute a reliable indicator of proprietary status. One need look no further than the law of battery to find authority for the proposition that injunctions may be granted in connection with this tort.Footnote 103 That said, it is also true that the personal interest protected by this tort is no less valuable according to the hierarchy than the various types of proprietary interest recognised by tort law. So, the mere fact that injunctions can be obtained in connection with battery does nothing to undermine the more general claim that it is the intrinsic value of the interest at stake that explains the generous availability of these orders in certain torts. To rebut this contention, we must look elsewhere: to torts in which injunctions are regularly granted even though the interests they are awarded to protect are low-ranking ones.
In particular, we may look to a number of the economic torts which, as noted already,Footnote 104 commonly protect interests towards, or at, the base of the hierarchy. Take, for example, inducing breach of contract (for which injunctions can very comfortably be obtainedFootnote 105). Although it has been suggested numerous times, and in various ways, that this tort treats one's contractual rights as a species of property,Footnote 106 it is not an argument that withstands scrutiny. Two key reasons may be given for the failure of this “property thesis”. First there is the problem that the supposed analogy between contractual rights and proprietary rights (based on the fact that they are both protected from third-party interferences) breaks down once one considers the fact that, in order to commit the tort of inducing breach of contract, D must know that he is inducing a breach of contract.Footnote 107 Proprietary rights are never contingent on what D happens to know. If I walk across your land mistakenly thinking it is mine, I am just as much a trespasser as if I did so knowingly.Footnote 108 Secondly, the property thesis is circular insofar as it is fuelled by the observation that both contractual and property rights are protected from third-party interferences. If we want to know why contractual rights enjoy proprietary status, it is no use answering: “Because they offer protection against third party interference.” For if we then ask the obvious question about why they enjoy such protection, the answer that comes back is: “Because they are a form of property.” With no compelling reason to regard contractual rights as a species of property, it is clear that when injunctions are awarded in this tort, they are being granted to protect something more lowly than a proprietary interest.
Much the same conclusion must be drawn in relation to the availability of injunctions in the torts of injurious falsehood and causing loss by unlawful means. In a case of injurious falsehood – unlike a case of passing off – there is no inexorable concern to protect from trade rivals C's goodwill (a form of intangible property).Footnote 109 So much is clear from the fact that liability for injurious falsehood may be imposed on parties other than business rivals. Newspaper editors, for example, may fall within the maw of this tort, even though they are not C's trade competitors and not out to capture for themselves some of C's existing customers.Footnote 110 Accordingly, the tort is best seen as one that is overwhelmingly used to protect against purely financial losses rather than the misappropriation of property.Footnote 111 This idea comes through very clearly in various cases in which its gist – special damage – has been recast as, “a general loss of business”,Footnote 112 “pecuniary or temporal damage”Footnote 113 and the loss of a “potentially valuable right to sell the story of [an] … accident”.Footnote 114 In fact, so consistently has this tort been linked to such financial losses that Carty goes so far as to declare it a tort about falsehoods “inherently likely to harm the claimant's economic interests pure and simple”.Footnote 115 And yet, for all this, injunctions are readily granted for injurious falsehood.
As regards causing loss by unlawful means, it is clear from JT Stratford & Son Ltd v Lindley Footnote 116 that injunctions can also be obtained in this tort to protect purely financial interests. In this case, D's industrial action brought C's business to a standstill. The terms of the injunction – centred as they were on C's existing and future contracts – reveal amply that the order was designed to protect purely pecuniary interests. Lord Upjohn granted “[a]n injunction restraining the respondents … from doing … any act which causes or procures a breach or breaches by customers of the appellant company of contracts made now or hereafter”.Footnote 117 Thus, just as with injurious falsehood, an injunction may be obtained in this tort to protect a non-proprietary interest.Footnote 118
Against this background, it cannot safely be asserted that the free availability of injunctions in tort law is linked to the high-ranking status of certain interests. And my contention that there is no necessary correlation between the interest at stake and the prospect of C obtaining injunctive relief can be fortified further by reference to the fact that even where a very highly ranked interest is in play, the courts sometimes refuse such an order. The non-availability of injunctions in negligenceFootnote 119 helps illustrate this point.
Admittedly, it is not obvious how injunctions might feature within the law of negligence. Most negligence cases involve one-off, inadvertent acts by D that have already occurred, and have had their full effects felt before C seeks a remedy. But this needn't always be the case. It is possible, for example, for D's negligence to take the form of ongoing non-feasance. An employer failing to provide their employees with a safe place of work would be an example.Footnote 120 In any such case, it would be perfectly sensible to consider a mandatory injunction requiring the employer to comply with this duty a feasible remedy given the daily risk of personal injury to employees.Footnote 121 And yet, negligence law does not presently permit such relief. Accordingly, the claim that the free availability of injunctions is determined by the standing of the interest at stake founders.
In truth, the hierarchy of protected interests does not supply a particularly compelling account of why and where courts will be most willing to grant injunctive relief. Injunctions may be obtained with relative ease in various torts that overwhelmingly protect our most lowly interests; while, at the same time, they may also be denied where our most highly cherished interest (i.e. bodily integrity) is in jeopardy.
4. A possible objection
Although the preceding paragraphs have questioned the putative explanatory function of the hierarchy of protected interests, it might be objected that my arguments are misplaced insofar as proponents of the explanatory function do not do so in accordance only with what Dworkin called “the brute facts of legal history”.Footnote 122 Rather, so the objection might go, those who say the hierarchy performs this explanatory function do so from an interpretivist perspective, grounding their explanation of the law's structure and features on the twin bases of “fit” and “justification”; for it is only (they would say) by being attentive to both fit and justification that an account of the law can present it in its best possible light.Footnote 123 We may label this objection the “interpretivism objection”.
If the relevant authors are writing from this perspective, then there is, according to the interpretivism objection, a degree of latitude to disregard some of the brute facts of legal history to which I have attached considerable significance in explaining why various torts are actionable per se or on a strict liability basis. This licence for disregarding certain holdings stems from the fact that interpretivist accounts constitute ongoing narratives which, while they accommodate much of the past, also aspire to be morally and politically palatable in the here and now.Footnote 124 As Dworkin explained: the interpretive enterprise “begins in the present and pursues the past only so far as and in the way that its contemporary focus dictates”.Footnote 125
So can this interpretivism objection be rebuffed? I think it can; and on three grounds. First, none of those who make the claims that I questioned in the previous section provide any indication that what they say was intended as interpretivism. Indeed, Cane is overtly more interested in factual observations about the law than justificatory spins that may be placed upon it. Take, for example, what he says about the relationship between strict liability and proprietary interests. With no hint of justification on offer, he remarks simply that, once one realises that
interests protected by strict liability are more highly valued by tort law than interests protected by fault-based liability, a very significant fact emerges, namely that [in such circumstances] tort law values property interests more than a person's interest in health and safety.Footnote 126
The second basis on which the interpretivism objection may be rebuffed is by reference to the fact that even if the interpretivist may permissibly paper over a certain amount of legal history in order to produce the most appealing explanation of the law, it still appears that the relevant authors have not undertaken such an exercise. This is because an explanation can hardly be regarded as the most palatable one possible when it remains beset by incoherence. Thus, even if we overlook those historical aspects of trespass to which I attached salience, there is still no convincing justification for that part of the law of slander which protects our commercial interest in plying a particular trade. Put another way, if the best justification for actionability per se resides in the status of the interest protected, then one would expect some rejection – some papering over – of this branch of the law, too. Without it, there is a conspicuous absence of the “horizontal rather than … vertical consistency of principle” towards which interpretivism aspires.Footnote 127 Yet none of the relevant authors seem troubled by this.
Thirdly, the interpretivism objection can be rebuffed by reference to the fact that the authors whose work I address ignore a great deal more of the law than “law as integrity” would ever permit. The interpretivist is at liberty to side-line a certain amount of what previous cases have established; but there are limits. Not all of the brute facts of legal history can be side-lined. Rather, as Dworkin himself put it, “the history or shape of a practice or object constrains the available interpretations of it”.Footnote 128 So, in explaining the law, “fit will [still] provide a rough, threshold requirement that an interpretation … must meet if it is to be eligible at all”.Footnote 129 Could anyone, then, in the name of interpretivism plausibly ignore a centuries-old line of case law that renders the trespass torts actionable per se for reasons that have nothing to do with the relative value of the interests at stake?
IV. Understanding the Hierarchy's Fluidity
It is one thing to note that the relative importance of two conflicting interests will not always be enough to determine the outcome of tort cases. But it is entirely another to understand why this is so. My aim in this section, therefore, is to illuminate this matter, to explain why Cane's sedulously constructed scheme is frequently best seen as no more than a starting point in deciding cases in which C's and D's respective interests collide. To this end, I identify four factors that can cause the weight attached to a particular interest to receive a considerable uplift (or downgrade) such that, despite its ordinary standing, it might nonetheless be judged to be (un)worthy of tort law's protection in a particular case.Footnote 130
A. Variations in D's Moral Culpability
The first factor that can contribute to a claimant's low-ranking interests receiving a boost is the degree of moral culpability attached to D's behaviour (such moral culpability being gleaned from the particular mindset that accompanies the commission of a wrong).Footnote 131 For example, we may contrast the way our mental integrity is protected by negligence law on the one hand, and the law of assault (or the revamped rule in Wilkinson v Downton Footnote 132) on the other. In negligence – where D's moral wrongdoing is an irrelevanceFootnote 133 – C's ability to sue for negligently inflicted psychiatric harm can be notoriously limited.Footnote 134 But where D's infliction of mental harm is intentional, tort law is markedly more willing to provide a remedy. In other words, the protection afforded to C's mental integrity receives an appreciable uplift in cases where D sets out intentionally to violate it.
In just the same way, the presence of intentional wrongdoing can serve to augment the protection afforded to pecuniary interests. Again, in stark contrast to the law of negligence, the economic torts typically require intentional or reckless wrongdoing on the part of D. And where such intentionality or recklessness is present – unlike in negligence where the recovery of pure economic loss is not normally possible – compensation for pecuniary damage is an entirely quotidian phenomenon. Indeed, there is sometimes so much of an uplift provided to the protection of pecuniary interests in this setting that, as we have seen, they may even become more readily recoverable than injuries to personal interests caused by identical acts.
B. Evidential Problems
A second factor that helps account for the fluidity of the hierarchy is the judicial circumspection that sometimes attends claims based on types of harm that present particular evidential difficulties. In negligence, establishing that a duty of care is owed in connection with one's proprietary interests is usually straightforward. But successfully establishing a duty of care in relation to one's personal interest in mental integrity can be a great deal more difficult, especially where one is a so-called secondary victim.Footnote 135 In other words, the courts are appreciably more willing to allow negligence claims in respect of property damage than they are claims by secondary victims suffering psychiatric harm. Accordingly, within the law of negligence, the latter appears to be more highly valued than the former. What, then, explains this reversal in the ranking of these two interests in this setting? The answer in large part lies with the evidential problems that attend claims for psychiatric harm. As the current editors of Winfield & Jolowicz on Tort explain:
Although psychiatric injury is a form of personal injury special restrictions apply to the recovery of damages … [and] [o]ne reason why psychiatric injury is treated significantly less generously is that, despite advances in scientific knowledge regarding the working of the mind, there is still a belief, rightly or wrongly held, that it presents a greater risk of inaccurate diagnosis.Footnote 136
C. Antecedent Wrongdoing on C's Part
It will be recalled that there exist several contingent departures from the hierarchy of protected interests. Examples considered in Section III included the eviction of trespassers and the recaption of chattels; and there is a common denominator here: the presence of antecedent wrongdoing on C's part. Trespass to land and conversion are both well-established wrongs and it is C's prior act of trespass or conversion that accounts for, respectively, the subsequent demotion of his or her interest in bodily integrity or the exclusive possession of land.
D. Consequences
However much one may oppose consequentialist reasoning in tort law adjudication – and powerful arguments along such lines can certainly be madeFootnote 137 – the inescapable truth is that the fear of certain consequences does feature in courts’ decision-making;Footnote 138 and it does so in significant measure. We have noted already the way that fears about the impact of an injunction on the productive activities of a given defendant might affect a court's willingness to grant such relief in private nuisance. At bottom, the concern is about how injunctions might stymie economically valuable endeavour by D. Such economic endeavour is beneficial to third parties as well as D and the aggregate loss at stake may result in C being denied an injunction such that C's proprietary interest in the peaceful enjoyment of her land gives way to D's commercial interest when the two collide.
Also noteworthy in this context is the fact that floodgates fears once contributed significantly to the cautious way that judges approached secondary victims’ claims for negligently inflicted psychiatric harm.Footnote 139 Such concerns still exert an influence where the deliberate infliction of a mental injury short of a recognised psychiatric condition is concerned. With an obvious desire to keep litigation levels within manageable bounds, Lord Hoffmann said in Wainwright v Home Office that
[i]n institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation.Footnote 140
The key point here is that floodgates fears render relevant the interests of third parties in the shape of the interest we all possess in having our courts able to function efficiently and effectively.
V. Conclusion
A clearly defined hierarchy of interests that is subject to no exceptions would undoubtedly be useful both to expositors of the law and judges required to decide cases at the heart of which lie conflicts between C's recognised interest, X, and D's recognised interest, Y. But we have no such hierarchy available to us. What we have, instead – thanks largely to Cane – is a sophisticated scheme that possesses deep intuitive appeal, but which must be handled cautiously in the classroom and in real-life litigation because a sizeable range of factors can and do disrupt the presumptive ordering of the interests protected by tort. Put another way, because tort law does not invariably reflect or adhere to the intuitively attractive hierarchy we have considered,Footnote 141 it follows that absolutist claims about its expository or dispositive utility cannot stand. We can neither claim that tort law will invariably treat personal or proprietary interests as more important than purely financial interests, nor assert that where interests of a different order collide, the inferior one will give way to the superior one.
Happily, though, an absolutist position is not essential. Cane's elaborate hierarchy is still a very useful starting point. With an awareness of the factors that cause the weight afforded to certain types of interest to be augmented or downgraded, it can still be a very helpful dispositive tool. What it cannot do, however, is provide a compelling account of why there exist the three particular tort law oddities examined in Section III. Certain bits of legal history seem to provide a much more compelling explanation in this connection (at least in respect those torts that are actionable per se or actionable on a strict liability basis). Whether the three oddities considered still deserve a place in the modern law of torts, and whether they should be treated as indicative of the status of certain interests, are important normative questions. But they are questions for another day.
