Great Debates in Tort Law PDF

Morgan, Jonathan. Great Debates in Tort Law. London: Hart Publishing, 2022. Great Debates in Law. Great Debates in Law. Bloomsbury Collections. Web. 7 Jan. 2025. <http://dx.doi.org/10.5040/9781509961399>. Accessed from: www.bloomsburycollections.com Accessed on: Tue Jan 07 202...

Morgan, Jonathan. Great Debates in Tort Law. London: Hart Publishing, 2022. Great Debates in Law. Great Debates in Law. Bloomsbury Collections. Web. 7 Jan. 2025. <http://dx.doi.org/10.5040/9781509961399>. Accessed from: www.bloomsburycollections.com Accessed on: Tue Jan 07 2025 12:47:49 Greenwich Mean Time Copyright © Jonathan Morgan. All rights reserved. Further reproduction or distribution is prohibited without prior permission in writing from the publishers.  2 Trespass: Tort and the Vindication of Rights INTRODUCTION ‘Oranges are not the only fruit’. And negligence is not the only tort. A road accident is probably the average tort lawyer’s paradigm. It is the commonest kind of tort litigation. Road accidents, and tort’s role in com- pensating their victims, are prominent in the legal and public consciousness. Drivers know they are legally required to insure against harm they cause to other road-users. Law students spend much of their tort courses studying various aspects of the tort of negligence. Yet this gives an incomplete picture of tort law and its function. Rival paradigms would be a slap in the face, a police search without warrant, or an arrest without due process. Here there is no ‘accident’ nor even any obvious ‘loss’. A slap is quite deliberate, as are police searches and arrests. They may cause no loss in the sense central to negligence, which connotes physical injury to person or property. Slaps hurt yet in negli- gence, in the absence of bodily injury like cuts or broken bones, ‘mere distress’ is not actionable. Sometimes police officers may seize or break the claimant’s things (or the claimant themselves) during a search or arrest. But typically no physical damage results. Approached through negligence, there seems to be no concrete loss and no claim since ‘damage is the gist of the action’. These scenarios engage other torts. Trespass protects against direct physi- cal invasion of a protected right: the claimant’s person, liberty, land or goods. Such an invasion is of itself a legal wrong. There is no need to show any other ‘loss’ (‘gist damage’): the trespass torts are complete without it, ‘actionable per se’. Defendants may be able to justify the invasion: e.g. reasonable force used in self-defence, police holding a valid arrest warrant or a prison governor jailing persons sentenced by the courts. But the onus of justification lies on the defendant. It is ‘heavy’ and their conduct ‘closely scrutinised by the courts’.1 Rightly so when every direct invasion of this kind is prima facie wrongful – as assault, battery, false imprisonment, trespass to land or goods. 1 Connor v Chief Constable of Merseyside EWCA Civ 1549 (Hallett LJ). 9 10 GREAT DEBATES IN TORT LAW Tony Weir emphasised the trespassory torts’ importance and distinctiveness.2 Tort does not exist solely to compensate accidental harms. It also ‘vindicate[s] constitutional rights’. The question is simply whether the rights have been infringed, not whether the infringer can be blamed. Hence strict liability, strictly construed defences and actionability per se (‘Not every infraction of a right causes damage’). Weir lamented that negligence had obscured the vital role of trespass. Although relatively modern, negligence had ‘thrived so might- ily and grown so lusty’ that like a ‘cuckoo in the nest’ it threatened to supplant the older torts. Negligence’s dominant role – ‘for no better reason than that a great many people are mangled on the highway’ – means lawyers view trespass as ‘antiquated’, a ‘vestigial exception’ to the negligence principle. The ‘classic form’ of trespass is, after all, ‘completely at odds’ with the structure of negli- gence liability.3 But Weir warned that downgrading trespass would be socially harmful, undermining the rights of the citizen, particularly (although not only) in claims against state officials. However not all commentators agree. Dan Priel thinks trespass’s traditional nature is problematic.4 In modern mechanised societies, negligence forms part of a de facto public system for addressing mass accidental injuries. Whereas trespass has been unaffected by these socio-political currents, and remains ‘uniquely “private”’. The trespass torts seem ‘relics from a very different past, a shrinking and little loved island of private law in constant danger of being completely submerged under the rising seas of the more openly public negli- gence law’.5 Priel suggests it is significant that new social problems that would fall ‘naturally’ into the orbit of trespass have been dealt with through negli- gence, citing the question of patients’ ‘informed consent’ to medical proce- dures (examined in this chapter’s final debate). Varuhas agrees that negligence has ‘never been organised around protection of primary rights, but continued to serve wider public goals’.6 But trespass has traditionally been ‘resilient’ to such ‘socialisation’, remaining ‘squarely focused on protecting private rights’. Varuhas apprehends what Priel and Beurmann welcome – the ‘fundamental recalibration of these ancient actions in favour of affording greater protection to public interests and accommodating “ordinary” social norms’ – involving an erosion of the courts’ ‘insistence upon the inviolability of basic rights’.7 Similar disagreement characterises current debates about US tort law’s fragmented protection of human dignity. The trespass torts play a prominent role here, although by no means exhaust the field (since invasions of dignity 2 T Weir, A Casebook on Tort 10th edn (London, Sweet & Maxwell, 2004) 321–27. 3 T Weir, ‘The Staggering March of Negligence’ in P Cane and J Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Oxford, Oxford University Press, 1998) 108. 4 D Priel, ‘A Public Role for the International Torts’ (2011) 22 King’s LJ 183. 5 ibid 187. 6 JNE Varuhas, ‘The Socialisation of Private Law: Balancing Private Right and Public Good’ (2021) 137 LQR 141, 142. 7 ibid 144.  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 11 might also engage defamation, negligence, nuisance, misuse of private information …). Traditionally minded scholars reason that an overarching, unified ‘dignitary tort’ is impossible.8 The common law has evolved self- contained causes of action. This structure resists ‘even partial conceptual unification or cross-pollination’. Others strongly disagree.9 There should be a unified tort. The inconsistent rules in different torts cannot be justi- fied, having developed from the common law’s ‘silo’ mentality. A generic tort would protect indignities all kinds, dispensing with the fact-based distinctions central to trespassory torts (eg was there physical touching or not?). Crucially, the generic tort would be founded on negligence – a suitably broad approach to address all unreasonable affronts to dignity. Sugarman and Boucher argue that limiting liability to intentional dignitary invasions (as in trespass) ‘does not capture all wrongful behavior’.10 The distinctiveness of trespass is the subject of this chapter. Accord- ing to Weir, the trespass torts’ structure and function cohere around their rights-protecting role. Negligence has a different logic – the compensation of unreasonably-inflicted loss. Negligence should not expand unthinkingly into the territory of trespass (and other, older nominate torts) – which it always threatens to do since negligence is not confined to the protection of particular interests (eg land, reputation, liberty).11 Weir feared negligence had colonised the other torts as Britain was said to acquire its Empire, ‘in a fit of absence of mind’.12 For others though, the imperial progress is positively welcome. Negli- gence’s expansionary potential enables it to address new kinds of harm beyond the reach of old established torts like trespass. Trespass protects rights strongly, but within a strictly limited scope (direct physical invasion). Negligence has begun to recognise intangible harms as ‘gist damage’ – that is, to protect rights of autonomy in addition to its familiar protection against personal injury or property damage.13 Given such trends, does Weir exaggerates the danger of the trespass torts’ encroachment by the ‘rising seas’ of negligence? This chapter examines the trespassory torts’ rights-protecting role. This protection flows from, and justifies, the torts’ characteristic strictness of liability and actionability per se (Debate 1). A more difficult legal question is how best to vindicate invasions of rights through damages (Debate 2). We also examine two distinctive contributions of these torts: their constitutional function and their surprisingly limited role in protecting patient’s rights to informed consent to medical treatment (Debates 3 and 4). The focus will be trespass to the person – battery and false imprisonment. 8 KS Abraham and GE White, ‘The Puzzle of the Dignitary Torts’ (2019) 104 Cornell LR 317. 9 SD Sugarman and C Boucher, ‘Re-imagining the Dignitary Torts’ (2021) 14 Jo Tort Law 101. 10 ibid 189. 11 Weir (n 3). 12 JR Seeley, The Expansion of England (London, Macmillan, 1883) Lecture 1. 13 D Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 MLR 59. 12 GREAT DEBATES IN TORT LAW Interference with bodily interests other than by direct physical contact will not be trespass, but may be actionable in negligence. (Negligence law’s prioriti- sation of physical injury over intangible or ‘emotional’ harms is assessed in later chapters.) Similarly, interference with land except by direct boundary intru- sions will not be trespass, but may amount to nuisance. (The contrast between the torts – and the necessity for a balancing of interests in nuisance – is again considered below.)14 Tort law contains an historic division between the rights- based trespass torts and loss-based torts like negligence. The structure is long- standing and deeply entrenched.15 But pressure to erode the distinction comes from two directions. First – Weir’s bête noire – trespass being ‘infected’ with negligence-type thinking. Conversely, some scholars seek to restate the entire law of torts around the protection of rights – including negligence. Direct physical intrusion upon important rights clearly warrants legal protection. But intangible interests are ever-more important, and non-physical intrusion ever- more common, in the twenty-first century’s ‘information age’. Is trespass ulti- mately an historical artefact, of decreasing importance to modern problems? Debate 1 Justifying Strict Liability and Actionability Per Se Strict Liability and Defences Trespass liability is classically strict. But this is increasingly challenged by reasonableness-/fault-based defences. We examine the doctrinal controversies to assess these developments. The trespass torts are sometimes described as ‘strict liability’ but also as ‘intentional’. An ambiguity in their structure therefore needs to be clarified. Trespass involves intentional conduct, but only in a trivial sense. The conduct constituting the tort has to be voluntary: imprisoning the claimant, or touch- ing them/their property (eg walking on the claimant’s land). Provided this is satisfied, as it virtually always will be, ‘D will be liable even if D was igno- rant of the facts which rendered the acts trespassory, and even if D acted in perfect innocence and good faith’.16 This means trespass is not ‘intentional’ in the more natural sense requiring intention to produce a harmful result (ie knowingly invading the claimant’s right). Wilson v Pringle held there is no need to show intention to harm: all that must be intentional is ‘the applica- tion of force’, or ‘the act of touching’.17 The necessity that the acts constituting 14 See ch 10, ‘Strict Liability for Property Damage and Trespass’. 15 DJ Ibbeston, A Historical Introduction to the Law of Obligations (Oxford, Oxford University Press, 1999). 16 P Cane, Tort Law and Economic Interests 2nd edn (Oxford, Oxford University Press, 1996) 29. 17 QB 237, 247–48.  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 13 trespass were ‘voluntary’ requires little more than the defendant being con- scious when acting.18 Fundamentally then, these torts do not involve fault. 19 (Compare neg- ligence where it is clearly insufficient that a defendant was voluntarily driving the vehicle that struck the claimant: the question is whether the driver was careless about the consequences of their conduct.) 20 If I walk on land which I quite reasonably believe is mine, I am liable in trespass if in fact it belongs to you (not a far-fetched example in a boundary dispute). If I tap you on the shoulder to attract attention, jostle you in horseplay or kiss your cheek, I have intentionally applied direct physical force to your person which is (prima facie) battery – absenting a valid defence (such as consent). It is irrelevant that I reasonably think you would not resent – or might positively welcome – the touch. A vivid example of strict liability is R v Governor of Brockhill Prison, ex p Evans (No 2). Here the defendant prison governor had used High Court jurisprudence to calculate the claimant’s release date. But the High Court got the law wrong and the case which the governor had loyally applied was overruled.21 Although he reasonably relied on the High Court’s guidance (indeed he had surely had no choice – ‘what more could he have done?’), the governor had, objectively, imprisoned the claimant past the correct legal release date. He had had no legal authority for that continued detention. The governor was therefore liable for the tort of false imprisonment – even though quite ‘blameless’.22 (Indeed, the House of Lords expressed sympa- thised with his position.) Evans illustrates the trespassory torts’ double strictness. First, it is usually straightforward to show that the defendant intentionally touched or impris- oned the claimant.23 That is all the claimant need prove. It is irrelevant that the defendant reasonably believed they had the legal power to do so. Which leads to the second point: defences are strictly construed. It is not enough to believe, quite genuinely and reasonably, that one has the power (indeed duty) to keep a prisoner locked up. The defendant must actually have the power. There is no general defence of having acted reasonably. As Weir pointed out, ‘those who invade our rights generally do so on reasonable grounds, that is, for our own good or for someone else’s good or for the public good’.24 Hence 18 D Howarth, ‘Is There a Future for the Intentional Torts?’ in PBH Birks (ed), The Classification of Obligations (Oxford, Clarendon, 1997). 19 See also Fairfax Media Publications Pty Ltd v Voller HCA 27 (Edelman J) (defamation) citing R Stevens, Torts and Rights (Oxford, Oxford University Press, 2007) 101. 20 Holmes v Mather (1875) LR 10 Ex 261. 21 R v Governor of Blundeston Prison, ex p Gaffney 1 WLR 696 (overruled by ex parte Evans (No 1) QB 443). 22 2 AC 19. 23 Cf Regina (Jalloh) v Home Secretary AC 262 (meaning of ‘imprisonment’). 24 Weir (n 2) 323. 14 GREAT DEBATES IN TORT LAW why the defendant must prove that they actually had legal authority (not the ‘insidious’ plea that they reasonably thought they had it): ‘the most important, as well as the oldest, rule in the book’.25 From tort’s usual fault-based perspective, this seems harsh on blameless defendants. But the fault principle is of dubious relevance in the protection of rights. It is wrongful, in itself, to cross the boundary (physical and metaphysical) which protects a right, ‘regardless of whether it causes any harm to the right- holder and regardless of whether the boundary-crossing was negligent, reck- less or intentional’.26 The logic is that certain core rights ‘deserve protection in their own right regardless of any fault’; this places them ‘at the top of the hier- archy of legally protected interests’.27 ‘To require the right-holder to prove fault on the [defendant’s] part … or to allow the [defendant] to plead contributory fault on the part of the right-holder, would be inconsistent with full protection of rights’.28 Cane makes these points in relation to property interests. The points apply a fortiori to battery and false imprisonment. Strict liability is arguably here ‘morally demanded’.29 But this strict liability has been questioned. Diplock LJ argued that although trespass to goods ‘historically did not necessarily involve blamewor- thiness’, recent developments indicated ‘protecting those who act reasonably in intended performance of what rightminded men would deem a duty to their fellow men’.30 This signals the intrusion of ‘negligence thinking’. There are many other examples. In Ashley v Chief Constable of Sussex the Court of Appeal held that self-defence will succeed in a battery claim if the defendant reasonably thought their use of force justified (although, in fact, there was no threat).31 Clarke MR rejected textbook statements that mistaken beliefs, even reason- ably mistaken ones, were never a defence in trespass.32 A defence based on reasonably mistaken beliefs fairly ‘held the balance’ between the parties, since ‘a defendant may fear for his life and have only a split second to decide what to do’.33 Arden LJ agreed, despite her observation that ‘Any claim to commit a trespass … out of self-defence must be jealously regarded by the law because it amounts to the creation of an exception to the rule of law’.34 This approach clearly departs from the model of strict protection of rights given above. (On appeal, three law lords left the question open.)35 25 ibid 322. 26 P Cane, ‘Mens Rea in Tort Law’ (2000) 20 OJLS 533, 552. 27 Cane (n 16) 29. 28 P Cane, ‘Causing Conversion’ (2002) 118 LQR 544. 29 A Beever, ‘The Form of Liability in the Torts of Trespass’ (2011) 40 Common Law World Rev 378, 392. 30 Chic Fashions (West Wales) Ltd v Jones 2 QB 299, 315. 31 EWCA Civ 1085; 1 WLR 398. 32 ibid –. 33 ibid. 34 ibid. 35 UKHL 25; 1 AC 962 (Lord Scott).  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 15 Percy v Hall is another departure. The defendant policemen arrested the plaintiff for breaching a bye-law prohibiting access to military premises. It was later held that the bye-law was void (because ultra vires).36 Nobody realised that at the time of the arrest. A claim for false imprisonment failed.37 Simon Brown LJ reasoned that the ‘innocent constables’ had acted precisely as they should have done: the public interest required enforcement of the apparently valid bye-law. Its retrospective invalidation (‘surely’) could not transform the police officers’ conduct into an actionable tort and deprive them of the defence of lawful justification.38 Percy v Hall prioritised (perceived) fairness to the police defendants over protection of the plaintiff ’s right not to be arrested. The court suggested the real culprit was the Secretary of State who promulgated the invalid bye-law. Morally that may be correct. It was of no help to the plaintiff. As Simon Brown LJ accepted, no damages action exists for unlawful adminis- trative action.39 But the absence of a claim against the minister was ‘no basis for creating a cause of action instead against those, here the defendant constables, who are not responsible for the invalidity’. Weir attacks these developments. Percy v Hall exemplifies tort law’s infiltra- tion by the negligence principle.40 The court’s reluctance to hold liable police officers who had acted reasonably undermined tort’s previously strict protec- tion of fundamental rights (the right of liberty in Percy). This cannot be rec- onciled with the strict approach to the prison governor’s liability in Evans. The fault principle, alien to trespass, has undermined its structure and in conse- quence, its constitutional function.41 Conversely, Priel suggests that trespass focuses unduly on the claimant’s rights. Trespass traditionally ignores the curtailment of defendants’ auton- omy by imposing strict liability for ‘innocuous trifles that cause no harm’.42 Priel accordingly welcomes the rise of reasonableness-based defences (arguing this should go further in assault and battery, torts that any individual might commit, than in false imprisonment which usually involves government defendants).43 Donal Nolan questions the transformation of negligence into a rights-protecting tort (a doctrinal possibility following the acceptance of invasion of autonomy as ‘gist damage’).44 Nolan observes that the require- ment of direct physical invasion keeps trespass within ‘very particular’ limits. Whereas holding every negligent invasion of rights actionable per se would 36 Bugg v DPP QB 473. 37 Percy v Hall QB 924. 38 ibid 947–48. 39 See further Mohammed v Home Office 1 WLR 2862 (Sedley LJ). 40 Weir (n 3); Weir (n 2) 354 (Percy v Hall ‘disgraceful’). 41 See further Varuhas (n 6) 148: Austin v MPC 1 AC 564 reverses burden of proof of lawful authority defence with ‘no real explanation’. 42 Priel (n 4) 197. 43 ibid 193 (noting the particular strictness of Evans (false imprisonment)). 44 Nolan (n 13) (discussing Rees v Darlington NHS Trust 1 AC 309). 16 GREAT DEBATES IN TORT LAW ‘unduly … restrict people’s freedom of action’ since negligence ‘encompasses a limitless variety of actions or omissions’. Unlike Priel, Nolan thinks the stringency of trespass liability is tolerable given its narrow scope (direct physi- cal violation). Christine Beuermann argues that negligence should supersede trespass.45 At its heart, negligence balances the parties’ interests. It assesses ‘reasonableness’ using the risks posed, social context and all other relevant circumstances. In Beuermann’s view, this open balancing process is more effective and transpar- ent than the (‘anachronistic’) trespass torts, where balancing (she argues) plays a similar but concealed role. Beuermann cites the fault-influenced adaptation of trespass defences described above, and also the rule that ‘everyday’ touching is not actionable in trespass. This requires brief explanation. There is no liability in battery for ‘physical contact which is generally accept- able in the ordinary conduct of daily life’.46 Hence: ‘nobody can complain of the jostling which is inevitable from his presence in, for example, a supermar- ket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship’. Some have suggested that by going out into the world, we all consent to inevitable or innocu- ous touching. Lord Goff rejected that ‘consent’ rationale. It was ‘artificial’ – ‘in particular, it is difficult to impute consent to those who, by reason of their youth or mental disorder, are unable to give their consent’.47 Therefore some freestanding exception ‘to allow for the exigencies of everyday life’ seems inevitable.48 Beuermann argues that the ‘socially acceptable touching’ defence implic- itly involves negligence-style balancing of claimants’ and defendants’ interests. Should this not be carried out openly in the tort of negligence, rather than obliquely through ‘social acceptability’ in trespass? David Howarth argues that tort law should avoid unnecessary duplication of actions (numerous torts cov- ering essentially the same ground). Not through (aesthetic) concerns about jurisprudential elegance but because law will achieve its social goals better by avoiding inexplicably complex distinctions and categories.49 Do these argu- ments this undermine Weir’s campaign to preserve trespass against negligence- based thinking? Not necessarily. First, the trespassory torts have a different social goal, the protection of rights (reflected not only in strict liability, but as discussed below its rem- edies and constitutional function). Second, the ‘everyday life’ exception is narrower than Beuermann’s argument suggests.50 A clear example is Re F, 45 C Beuermann, ‘Are the Torts of Trespass to the Person Obsolete? Part II: Continued Evolution’ (2018) 26 Tort LR 6. 46 Collins v Wilcock 1 WLR 1172, 1177 (Robert Goff LJ). 47 In Re F 2 AC 1, 72. 48 ibid. 49 Howarth (n 18). 50 Although cf Varuhas (n 6) 146–47 (‘creeping’ expansion).  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 17 where the House of Lords ruled that surgery could be performed on adults lacking mental capacity in the patient’s best interests.51 Significantly, the sug- gestion that such medical treatment could fall within the ‘everyday conduct’ exception was unanimously rejected. There was good reason to confine the exception strictly: it could be oppressive to extend it from physical contact unavoidable in daily life to other supposedly ‘desirable’ invasions of rights. As Beever asks: ‘Why should one have to put up with being intentionally touched just because that form of touching is ordinary or thought reason- able by a judge?’52 He argues that ‘acceptable’ trespass encompasses only the parties’ joint interests. For example, their common interest in circulating in crowded places, or a householder’s interest in people (eg postmen) walking up their garden path to communicate with them.53 Importantly, this rules out ‘socially acceptable’ exceptions derived from the general public interest – as in the questionable Australian decision that police officers enjoyed a house- holder’s ‘implied permission’ to enter his land to arrest him!54 Brennan J, dis- senting, had correctly argued that the ‘consent’ was a fiction and, moreover, reversed Entick v Carrington (the great constitutional case requiring officials to show legal authority for entry, seizure or arrest).55 A general balancing approach weakens the protection of rights. Whether invoking ‘general acceptability’, ‘implied permission’, or the defendant’s lack of fault, wide defences undermine rights. A ‘reasonableness’ inquiry departs from the tradition of specific defined defences in trespass. The traditional struc- ture is complex and detailed. But those who invade (not just imperil) others’ rights should face stricter limitations. Although the categories of justification are not formally closed, they should only expand ‘with the greatest caution, for every extension … constitutes the erosion of a right’.56 Actionability Per Se and Vindication Actionability per se equally reflects trespass’s role in protecting rights. Tres- pass is actionable in tort whether or not it causes material loss – that is, irre- spective of whether it leaves the claimant ‘factually worse off … as a result of the wrong’.57 All that has to be shown is a direct physical invasion of the right. In battery: The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, 51 2 AC 1. 52 (n 29) 392. 53 A Beever, A Theory of Tort Liability (Oxford, Hart, 2016) ch 6. 54 Halliday v Nevill (1984) 57 ALR 331. 55 ibid 343; Entick v Carrington (1765) 19 St Tr 1029. 56 Weir (n 2) 324. Cf Varuhas (n 6) 148: Austin v MPC 1 AC 564 another ‘significant expansion of police powers’ (false imprisonment). 57 Stevens (n 19) 61. 18 GREAT DEBATES IN TORT LAW however slight, may amount to a battery … The effect is that everybody is protected not only against physical injury but against any form of physical molestation.58 Tort law takes these rights seriously by granting an action ‘to mark even minis- cule interferences’.59 Here trespass contrasts with torts, especially negligence, where ‘damage is the gist of the action’. Only when actual loss (‘actionable damage’) occurs can the claimant claim in negligence. It is therefore difficult to conceive negligence as having the same rights-protective function.60 A number of debateable points arise. First, is it accurate to assume that neg- ligence is not concerned with the protection of rights? Courts have recognised certain abstract interests as ‘actionable gist damage’ in negligence – including liberty and ‘reproductive autonomy’.61 A wider conception of ‘damage’ erodes the distinction between negligence (actionable only when damage present) and trespass (actionable per se). Second, what if material loss (like a broken leg) does result from inten- tional touching? In principle, victims can claim in trespass or negligence at their option. However there is uneasiness about extending strict liability in trespass from infringement of rights to the resulting injuries. In Wilson v Pringle the defendant schoolboy playfully jumped on his classmate who landed awkwardly, injuring his leg. As seen, the court confirmed that only the intention to touch the plaintiff had to be shown for an action in battery (clear on the facts); there did not have to be intention to injure. But from the negligence perspective, liability here seems anomalous. A schoolboy might intentionally touch another without being negligent about the injuries caused by that physical contact. The risk of injury might be unforeseeable, or at least not to a teenager.62 (The Court of Appeal in Wilson v Pringle, sensing harsh- ness, added the dubious requirement that touching had to be ‘hostile’. The ‘hostility’ limitation has since been authoritatively disapproved.)63 Even Weir accepted that in cases involving actual personal injury, negli- gence has to be proven.64 Weir thought this concession made it easier to resist the negligence principle where it is not relevant, that is, ‘where the plaintiff is seeking, not compensation for harm, but rather vindication of the rights 58 Collins v Wilcock 1 WLR 1172, 1177 (Robert Goff LJ). 59 JNE Varuhas, ‘The Concept of “Vindication” in the Law of Torts: Rights, Interests and Damages’ (2014) 34 OJLS 253, 290. 60 NB Shaw v Kovac EWCA Civ 1028 – (nominal damages not available in negligence). 61 Nolan (n 13). 62 Mullin v Richards 1 WLR 1304. 63 In Re F 2 AC 1, 73 (Lord Goff). 64 Weir (n 3) 109–10; T Weir, An Introduction to Tort Law 2nd edn (Oxford, Clarendon, 2006) 134–35. See eg Mayfair Ltd v Pears 2 NZLR 459 (trespass to land causing property damage; no liability unless negligent).  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 19 by whose infringement he is aggrieved’.65 The law should therefore allocate ‘harm’ cases exclusively to negligence and ‘invasion of rights’ cases exclusively to trespass. Such a clear demarcation of function justifies a separate tort of tres- pass – whereas the present law appears ‘schizophrenic in having two torts with fundamentally ingredients’ co-existing on identical facts.66 The final question is how best to remedy an invasion of rights, actionable per se, which causes no loss. This is considered in the next debate. But note, even to suggest that remedies in the absence of loss might be problematic adopts the loss-focused mindset of negligence. This cannot simply be assumed as the starting point. The ‘relentless’ insistence on proof of concrete loss stands in the way of a ‘meaningful remedy’, and may even ‘defeat the object of the cause of action’, for torts which ‘afford protection to basic rights recognised by the common law’.67 Debate 2 Remedies and Vindication of Rights How should the law remedy invasions of rights? When actual loss results, it is universally accepted that this may be compensated (eg property damage, per- sonal injury or – especially here – distress). Serious, knowing invasions may also attract aggravated damages and (against government defendants) exem- plary damages.68 But what if there is no intentional wrongdoing and no loss results? There will clearly be liability, given that trespass is actionable per se. But should substantial damages be awarded for ‘the infringement itself ’? Is it sufficient vindication to award ‘nominal damages’ (the traditional remedy) and/or a declaration? Nominal damages are the orthodox approach.69 In Murray v MOD Lord Griffiths considered false imprisonment of persons unaware of their confine- ment. Such a claimant would ‘normally … recover no more than nominal damages’ having suffered no harm. Yet liability was not in doubt: ‘The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of [actual] damage’.70 Similarly, in Lumba v Home Secretary the Supreme Court reasoned that the absence of loss caused by the claimant’s detention under an unlawful government policy (when he would anyway have 65 Weir (n 3) 110. 66 ibid 109. 67 GE v Commissioner of an Garda Síochána IECA 113 (Murray J). 68 Eg Patel v Home Secretary EWHC 501 (Admin) (£110,000 general and aggravated damages, plus £15,000 exemplary damages, for ‘monstrous series of miscarriages of justice’). But such awards are rare: J Goudkamp and E Katsampouka, ‘An Empirical Study of Punitive Damages’ (2018) 38 OJLS 90. 69 The Mediana AC 113, 116; Constantine v Imperial Hotels Ltd KB 693. 70 1 WLR 692, 703. 20 GREAT DEBATES IN TORT LAW been detained under the correct, lawful policy) did not prevent liability in a tort actionable per se.71 But (by a majority) the court awarded only nominal damages on the particular facts. Note, however, there are authorities support- ing substantial damages for imprisonment ‘itself ’.72 (As discussed in the follow- ing section, the Lumba decision is especially controversial.) Jason Varuhas welcomes the cases awarding substantial damage: compen- sation for loss of liberty should be assessed objectively.73 The claimant’s lack of distress (or even awareness) does not diminish the fact of imprisonment. Varuhas cites Huckle v Money where the plaintiff recovered substantial damages despite being treated very well by his gaolers and fed beef-steaks and beer.74 Other prisoners might be unusually phlegmatic, or defiant. Nevertheless, sub- stantial damages should be awarded. Varuhas conceives this as a special form of ‘compensation’.75 It does not compensate loss in the usual sense (loss ‘which correspond[s] with real-world effects’ harming the claimant). The loss involved in infringement of a right exists ‘exists solely on the legal plane’; the law ‘con- structs’ a loss which Varuhas calls ‘normative damages’.76 Their function is not compensation but vindication: ‘attesting to, affirming and reinforcing the fun- damental nature of the interest and its inherent value’.77 As Eric Descheemaeker puts it, under this ‘alternative model, increasingly influential in an age saturated with the language of rights’, the law is no longer concerned with ‘a concrete loss that flows from the violation of a right, rather we are talking about an abstract loss or harm defined as the injury to the right itself ’.78 Long visible in damages for loss of liberty ‘itself ’, such remedies have become more prominent. As common with new concepts, a terminological battle has erupted. The most common label in current use is probably ‘vindi- catory damages’ (also ‘substitutive’ or ‘normative’ damages). All are used to mean substantial damages for the invasion of a right (awarded in addition to any compensation for concrete loss). Nominal damages are ‘unintelligible’ on the rights model according to which every ‘right-violation is a genuine loss which deserves genuine, hence more than nominal, damages’.79 However, Lumba controversially reaffirms the place of nominal damages. The Supreme Court’s rejection of ‘vindicatory damages’ has been followed in Australia: Lewis v Australian Capital Territory.80 The novel remedy 71 1 AC 245 – (Lord Dyson) (Lumba). 72 Evans QB 1043, 1059 (Lord Woolf MR) (approved 2 AC 19, 39); Iqbal v Prison Officers’ Association QB 732, – (Lord Neuberger MR). 73 Varuhas (n 59). 74 (1763) 2 Wils KB 205. 75 Varuhas (n 59) 268. 76 See Stevens (n 19) 78 (‘Instead of referring to factual losses we could say the loss is legal or normative whenever a right is infringed’). 77 Varuhas (n 59) 254. 78 E Descheemaeker, ‘Unravelling Harms in Tort Law’ (2016) 132 LQR 595, 595, 599. 79 ibid 616. 80 HCA 26 (Lewis).  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 21 was both unprecedented and unnecessary.81 Edelman J rejected a ‘radical reinterpretation’ that would alter our entire understanding of the law of damages.82 His Honour found it impossible to quantify the remedy if ‘the extent and manner of the deprivation [of liberty] would not be relevant’, seeming baffled by the claimant’s submission that ‘vindicatory damages’ ‘should be the same whether he was imprisoned in conditions of luxurious comfort or appalling depravity’.83 Edelman J accepted that while in ‘the vast majority’ of cases damages com- pensate loss flowing from a wrong, there are also remedies that focus on recti- fying the wrong itself.84 Injunctions can prevent or reverse wrongs. Moreover, ‘user damages’ aim ‘to rectify the wrongful act by requiring payment of an amount that would have made the use lawful’.85 Such ‘user damages’ are awarded where property (or analogous rights) are taken without the owner’s permission.86 The defendant has to pay a reasonable licence fee for that tortious usage. But Edelman J held that this remedy was not available for false imprison- ment (the tort in both Lewis and Lumba). It would be ‘nonsensical’ to reason that in such a case, the claimant could ratify their unlawful detention.87 There could be no lawful negotiation about such matters (by contrast with permitting others to use one’s property). User damages would be ‘incoherent’ since the claimant imprisonment’s by the government ‘could never have been a matter the subject of a monetary payment for [his] permission’.88 This reasoning has been questioned in an important Irish case rejecting the Australian and English approach.89 Murray J queried whether the law should give weaker protection to liberty than to interests that can be traded (‘commodified and reduced to rational economic formula’).90 It should not and did not. In Murray J’s view, tort ‘unsurprisingly’ recognises substantial damages for imprisonment which does not cause conventional material loss. He thought user damages’ ‘real point’ was that tort law can where appropriate give ‘the concept of loss or damage a wider meaning’.91 In particular, so that it can protect important interests by awarding more than nominal damages. It is now time to scrutinise the reasoning in Lumba. 81 ibid – (Gordon J). 82 ibid. 83 ibid. 84 ibid. 85 ibid. 86 One Step (Support) Ltd v Morris-Garner AC 649. 87 Lewis (n 80). 88 ibid. 89 GE v Commissioner of an Garda Síochána and Governor of Cloverhill Prison IECA 113 (GE). 90 ibid. 91 ibid. 22 GREAT DEBATES IN TORT LAW The Lumba Debate A loss-based model of damages lies the heart of Lumba (and Lewis v ACT). Unless the claimant in a false imprisonment action can show that the tort made them worse off, they cannot claim substantial damages. From a negligence per- spective this sounds unobjectionable. Yet to reach this conclusion, the courts have to draw a sharp line between liability and remedy. Whether the distinction can be maintained is the central controversy. Critics of Lumba argue that allow- ing ‘what would have happened’ to determine the question of loss and remedy undermines the tort’s supposedly strict protection of rights to liberty. The fact that someone could have been lawfully detained (but was not) is certainly irrelevant in deciding liability. As once observed, ‘It is no answer, when a man says “I have been unlawfully arrested without a warrant” [for the police] to say “Well, had [we] taken the trouble to go and ask for a warrant, [we] would undoubtedly have got it”’.92 As Lord Dyson said in Lumba, ‘the law of false imprisonment does not permit history to be rewritten in this way’.93 Lord Kerr agreed: ‘Detention cannot be justified on some putative basis, unre- lated to the actual reasons for it, on which the detention might retrospectively be said to be warranted’.94 Clearly this is correct throughout the law of tres- pass: ‘where a police officer restrains a person, but does not at that time intend or purport to arrest him, then he is committing an assault, even if an arrest would have been justified’.95 Similarly, sexual contact with sleeping persons must be unlawful as they are incapable of consenting. The defendant is not permitted to argue that ‘they surely would have consented’ to sex when in fact they did not (and could not). It is vitally important that the conditions of lawful arrest/detention are respected, or consent actually obtained. Lord Kerr thought this ‘elementary’, ‘self evident’ and ‘fundamental’.96 The High Court of Australia agrees. In deciding liability ‘there is no role for a counterfactual analysis’.97 As Gaegler J explained, even criminals vulner- able to imprisonment retain the protection of tort’s insistence that correct legal authority must be obtained before detaining them: a criminal is ‘not an outlaw’.98 But quite a different approach was taken to remedies.99 Damages compen- sate loss. To ascertain the claimant’s loss, the court necessarily compares their actual position with the hypothetical (or ‘counterfactual’) position if there had been no tort. (Again, this is trite in the loss-based model of negligence.) If but 92 Kuchenmeister v Home Office 1 QB 496, 512 (Barry J). 93 Lumba (n 71). 94 ibid. 95 Wood v DPP EWHC 1056 (Admin) (Latham LJ). 96 Lumba (n 71) ,. 97 Lewis (n 80) (Gordon J). 98 ibid. 99 See especially ibid – (Gordon J).  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 23 for the illegal detention the claimant would clearly have been detained law- fully, as on the facts of Lumba and Lewis, false imprisonment is established but it has caused no loss – and there cannot be substantial damages. Liability and remedy were ‘not to be elided’.100 Lord Dyson put the Lumba approach in a nutshell: If the power [of detention] could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed.101 Critics, however, complain that refusing to award substantial damages contra- dicts the finding of liability – undermining tort’s protection of liberty. Varuhas fears a ‘disconnect between judicial rhetoric of rights protection, and watering down practical protection’ (noting that in Lumba, someone held to be impris- oned wrongfully for two years received only nominal damages).102 The con- nexion between remedy and right had been stressed by the dissenting judges in Lumba itself. Lord Brown thought consistency required the approach to loss to apply to the prior question of liability too. The majority’s correct recognition that there was no loss meant the claimant ‘was in truth rightly in detention’ – a finding that was ‘the very negation of the tort’.103 To award nominal damages because someone would have been detained anyway would ‘seriously devalue the whole concept of false imprisonment’.104 Rather than ‘risk bringing the law into disrepute’ by ‘speak[ing] with two voices’ about remedy and liability, Lord Brown held there had been no tort at all. For him, the majority decision about remedy entailed that the claimant had not actually been falsely imprisoned. Others agree that right and remedy are linked, rejecting the other half of the equation. The Irish Court of Appeal agrees that it would ‘negate’ liability to refuse substantial damages. In Murray J’s view however, the approach to loss was therefore mistaken. Although the English and Australian courts believed they were applying an orthodox loss-based analysis this was questionable.105 The defendants had been found to have imprisoned the claimants unlaw- fully. But when the courts assessed damages, they shifted to assuming that the defendant would have acted lawfully. This ‘new normative hypothesis’ had no analogue anywhere else in tort law – rather a ‘contradiction’ when the ‘professed object … is to align’ the approaches.106 The approach was not 100 ibid (Gordon J). 101 Lumba (n 71). 102 Varuhas (n 6) 157, 169 (emphasis added). 103 Lumba (n 71). 104 ibid. 105 GE (n 89). 106 ibid. 24 GREAT DEBATES IN TORT LAW merely novel (unprecedented prior to Lumba).107 It was for Murray J dan- gerously incorrect. To assume that if the government had not acted unlaw- fully it would have complied with the law was a ‘fiction’ ignoring the illegality at the tort’s core.108 (‘False’ imprisonment connotes illegal imprisonment, not ‘mendacity’.)109 The right protected is freedom from unlawful deten- tion. Requiring the court ‘to ignore the illegality in its assessment of damages’ cannot be ‘reconciled with the essential objective of the cause of action’.110 For Varuhas, the way Lumba has been applied111 ‘turns the tort on its head: the starting presumption in favour of liberty, is supplanted by an irrebuttable presumption of legality in favour of government’ when the court turns to the assessment of damages.112 The Irish court upheld the tort’s traditional strictness and took a broader view of compensation.113 Although the ‘loss principle’ had ‘sound logic’ behind it, it was a mistake to apply it with ‘unyielding rigidity’: tort law has evolved rather untidily, providing different actions for ‘particular exigencies’. The correct question is whether a remedy would meaningfully advance the object of a particular cause of action – ‘excessive focus upon abstract theory’ could ‘obscure [that] reality’. False imprisonment required substantial – not nominal – damages.114 Nominal Damages The Lumba debate reveals deep disagreement whether nominal damages afford sufficient vindication of the right to liberty in false imprisonment. Among the minority, favouring the award of substantial damages, Baroness Hale asserted that ‘a modest conventional sum’ was necessary ‘to mark the law’s recognition that a wrong has been done’ and that an important right has been invaded, even in the absence of loss.115 The award would also ‘encourage all concerned to avoid anything like it happening again’ (although Lady Hale also stated that it was not ‘exemplary’ damages and did not purport to punish). Lord Hope emphasised that the defendant officials’ behaviour in Lumba had been ‘deplorable’, ‘a serious abuse of power’; ‘It is not enough merely to declare that this was so’.116 Lord Hope also insisted, however, that the award was not 107 ibid. 108 ibid. 109 R (Jollah) v Home Secretary 1 WLR 394 –. 110 GE (n 89). 111 Parker v Chief Constable of Essex EWCA Civ 2788 (criticised: Lewis (n 80) ). 112 Varuhas (n 6) 251. 113 GE (n 89) –. 114 ibid. 115 Lumba (n 71) –. 116 ibid.  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 25 exemplary damages. It ‘should do no more than afford some recognition of the wrong done, without being nominal or derisory’.117 Noting the equivocation, and pre-Lumba authorities holding it duplicative to award both ‘vindicatory’ and exemplary damages,118 Vanessa Wilcox concludes that they are in fact one and the same – ‘monozygotic [or “identical”] twins’.119 At least any difference is a matter of emphasis rather than real substance. But it would be better to ‘call a spade a spade’ and recognise, with Lord Collins in Lumba, that ‘In truth … vindicatory damages are akin to punitive or exemplary damages’.120 For Varuhas however, the routine award of substantial compensation for ‘normative damage’, even in the absence of actual loss, is the ‘golden thread’ running through the trespassory torts – showing their engrained concern with vindication.121 For example, in Plenty v Dillon police officers entered private land without lawful authority. The High Court of Australia scorned the idea that the trespass was ‘trifling’ or that absenting physical damage to the land, damages must be nominal.122 Substantial damages were needed to vindicate the claimant’s property rights. ‘Social disorder’ (even ‘anarchy’) would result unless ‘effective remedies’ protected unlawful invasion of rights (especially by government officials). Law would become ‘meaningless rhetoric’ if it lacked ‘effective sanctions’.123 A common theme equates nominal with ‘derisory’ damages. But is this correct? First, we could try to distinguish nominal damages, awarded to sym- bolise a wrong done, from the award of such a conspicuously trifling sum that [the judge] thereby expresses contempt for the plaintiff who was such a stickler for his rights that he insisted on uphold- ing them expensively and painfully in court even when the defendant’s violation of them caused him no loss.124 But can the distinction between awarding £1 and one penny (the smallest coin of the realm) bear such weight? If a penny ‘expresses contempt’ then does one pound really express ringing confidence in the claimant’s rights?125 Sadie Blanchard suggests that it might.126 A court decision making objective findings 117 ibid. 118 Attorney General of Trinidad and Tobago v Ramanoop UKPC 15 ; Takitota v Attorney General (Bahamas) UKPC 11. 119 V Wilcox, ‘Vindicatory Damages: The Farewell?’ (2012) 3 JETL 390. 120 Lumba (n 71). 121 Varuhas (n 59). 122 (1991) 98 ALR 353. 123 ibid 367 (Gaudron and McHugh JJ). 124 J Gardner, ‘Torts and Other Wrongs’ (2011) 39 Florida State Univ LR 43, 57. 125 Cf Wright v McCormack EWHC 2068 (QB) (award of £1 ‘nominal damages’ when it would be ‘unconscionable’ to award substantial damages for the (proven) significant harm to libel claimant’s reputation because he had advanced a deliberately false case to the court). 126 S Blanchard, ‘Nominal Damages as Vindication’ (2022) 29 George Mason LR (forthcoming). 26 GREAT DEBATES IN TORT LAW of fact, assessing the parties’ conduct against the relevant legal norms and ruling in the claimant’s favour, has a potent effect on the parties’ public reputation, irrespective of whether substantial damages are awarded. Blanchard cites the argument that explicitly judgemental company law ‘sermons’ have a powerful effect on shaping conduct of company directors and others, despite the fre- quent absence of any tangible personal sanction imposed by the court on such actors (given the prevalence of comprehensive liability insurance).127 It may be too simplistic to assert that only through the award of substantial damages can the law perform its ‘expressive’ and ‘behaviour-guiding’ functions. However, the concern remains that nominal damages will fail to deter persons inclined to commit torts. They might even see nominal damages as a price worth paying for unlawful conduct. Edelman recounts the story of Lucius Veratius who walked around Rome slapping people, then paying them the (by then trivial) sums laid down for assault in Roman law’s ancient Twelve Tables!128 While Lucius certainly discharged a secondary legal obligation to remedy his delicts, nobody could find his behaviour satisfactory. Rather his legend shows a legal system being exposed to derision, impotent to protect citizens’ rights not to be assaulted. In one old English case, Gibbs CJ accord- ingly upheld a trespass damages award challenged as ‘excessive’. He refused to limit damages to the plaintiff ’s ‘absolute pecuniary damage’.129 Gibbs CJ gave an example reminiscent of Lucius Veratius: Suppose a gentleman has a paved walk in his paddock, before his window, and that a man intrudes and walks up and down before the window of his house, and looks in while the owner is at dinner, is the trespasser to be permitted to say, “here is a halfpenny for you, which is the full extent of all the mischief I have done?” A modern US case cites Merest v Harvey with approval. ‘Society has an inter- est in preserving the integrity of the legal system’ which extends to deter- rence of trespasses involving ‘utter disregard’ for the claimant’s rights, even when they cause no material loss.130 Sadie Blanchard, as seen, disagrees with Judge Richard Posner’s view that nominal damages are ‘mysterious’, of ‘neg- ligible value’ and potentially open claimants up to ridicule.131 Even Blanchard, however, accepts that sometimes a nominal award is not enough. When a defendant like Steenberg Homes Inc appears insensitive to the reputational effects of a judgment for nominal damages, it may be necessary to award 127 EB Rock, ‘Saints and Sinners: How Does Delaware Corporate Law Work?’ (1997) 44 UCLA LR 1009. 128 J Edelman, ‘Vindicatory Damages’ in K Barker et al (eds), Private Law in the 21st Century (Oxford, Hart, 2017). 129 Merest v Harvey (1814) 5 Taunton 442. 130 Jacque v Steenberg Homes Inc 209 Wis. 2d 605 (1997). See ch 11, ‘Information Theory in Nuisance and Trespass: Clear Rules and “Coasian” Bargaining’. 131 Moore v Liszewski 838 F 3d 877 (2016).  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 27 exemplary damages to rectify their open defiance of social norms. ‘Punitives are for the shameless’.132 Scott Hershovitz argues that like tort law as a whole, exemplary damages have a primarily ‘expressive’ function – declaring what rights claimants have, and the wrongfulness of the defendant violating them.133 In particular, exemplary damages are not assessed in line with economic theo- ries of ‘optimal deterrence’ – for example, they are not multiplied to correct for ‘under-enforcement’ in situations where tort claims are unlikely to be made in practice. Rather, exemplary damages are imposed to mark judicial condemna- tion of egregiously wrongful conduct. Even assuming that ‘ordinary’ compensation for a light, painless slap from a modern-day Lucius Veratius would be nominal, other remedies might certainly be available too. Lucius’ behaviour epitomises the high-handed arrogance that would attract an additional award of aggravated damages for the affront of deliberate wrongdoing.134 It might satisfy English law’s solitary category of exemplary damages against private defendants: calculating that a tort will be profitable after paying compensation. The law surcharges exemplary damages precisely to teach the defendant that ‘tort does not pay’.135 While Lucius prob- ably derived sadistic pleasure rather than cash profits from his slapping-and- paying, such a ‘gain’ arguably qualifies. (In Merest v Harvey, decided when exemplary damages were more freely available, Heath J even justified their award ‘to prevent the practice of duelling’.) Note that exceptionally, exem- plary damages remain generally available against government defendants where their conduct deserves the court’s condemnation. As seen, some argue that the minority support for ‘vindicatory damages’ in Lumba ‘depended on considera- tions that were very closely associated with exemplary damages’.136 The court could also award the claimant’s full legal costs against the defend- ant on the punitive ‘indemnity’ basis, ensuring that ‘vindication of a right comes at no cost to the [claimant]’.137 Finally, a determined repeated tortfeasor could be restrained by injunction. Vindication by Declaration? Should damages be the focus? Kit Barker argues that private law does not require a novel category of substantial ‘vindicatory’ damages.138 Reasons for vindication include the educational and symbolic mission of ‘norm projection 132 Blanchard (n 126). 133 S Hershovitz, ‘Treating Wrongs as Wrongs: An Expressive Argument for Tort Law’ (2017) 10 Jo Tort L 405. 134 Rookes v Barnard AC 1129. 135 Broome v Cassell & Co AC 1027, 1073 (Lord Hailsham LC). 136 Lewis (n 80) (Edelman J). 137 ibid (Gordon J). 138 K Barker, ‘Public and Private: The Mixed Conception of Vindication in Torts and Private Law’ in SGA Pitel et al (eds), Tort Law: Challenging Orthodoxy (Oxford, Hart, 2013). 28 GREAT DEBATES IN TORT LAW and reinforcement’ and the deterrence of wrongdoing. More fundamen- tally, any functioning system for protecting legal rights requires a process of institutional announcements about their infringement. Barker argues that a reasoned declaratory judgment is the better vehicle. Using money as a ‘symbol’ is problematic. The level of damages is an ambiguous signal, apt to be misinter- preted. As seen, some attempt to distinguish a separate category of ‘contemp- tuous damages’ but the distinction with a ‘nominal’ £1 is not easy to draw or to understand. Barker also queries the difference between the nominal £1 awarded in Lumba and the minority judges’ preferred ‘modest’ substantial damages (variously £1,000, £500 or even less). Given such ambiguities, Barker argues that nominal damages should no longer be awarded as a vindicatory remedy. Instead courts should issue reasoned declarations that a tort has been com- mitted (right invaded). These will be more informative – and do a better job of vindicating rights – than the bare award of damages: ‘Money is a powerful incentive, but an inarticulate mode of expression’.139 By contrast, we would not expect the courts to mince their words when identifying and condemning serious invasions of rights. Let those words speak, not money. There is much to be said for this. In Lumba Lord Kerr observed that the court’s finding of liability, ‘the unambiguous recognition and declaration by the law that an individual has been falsely imprisoned’, was itself vindicatory (irrespective of whether compensation was also awarded).140 False impris- onment was therefore not (in his view) ‘devalued’ by the award of nominal damages. Moreover, pace Lady Hale, the wrong was sufficiently ‘marked’ and ‘emphatic recognition of the seriousness of the defendant’s default’ made without awarding substantial damages. ‘The defendant’s failures have been thoroughly examined and exposed.’141 A similar notion of vindication through hearing and judgment underlies Ashley v Chief Constable. The House of Lords permitted a battery claim to go to trial despite the defendant’s full admission of liability for the claimant’s death in negligence.142 That admission entitled the claimants to full compensa- tion. Thus the defendant objected – what purpose would a trial of the battery claim serve? The claimants could recover no greater sum (the chief constable having conceded liability for compensatory and aggravated damages). But as Lord Scott asked: ‘How is the deceased Mr Ashley’s right not to be subjected to a violent and deadly attack to be vindicated if the claim for assault and battery, a claim that the chief constable has steadfastly and consistently dis- puted, is not allowed to proceed?’143 He thought the claimants were entitled to 139 ibid 84. Cf Hershovitz (n 133) 431 (‘money is not just a medium of exchange; it is also a medium for sending messages’). 140 Lumba (n 71). 141 ibid. 142 1 AC 962. 143 ibid.  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 29 seek ‘a public admission or finding that the deceased Mr Ashley was unlawfully killed’.144 Lord Scott noted how ‘the chief constable has gone to considerable lengths to try to avoid the possibility of an adverse finding’ in the battery claim (namely the sweeping admission of liability in negligence).145 Priel has accordingly suggested a specifically ‘public role’ for the trespassory torts. They facilitate judicial scrutiny of alleged government unlawfulness – its public trial should not be defeated by admission of liability on other grounds.146 Priel notes that in such intentional torts claims, the courts make an exception to their usual hostility towards hypothetical litigation.147 The Ashley major- ity rejected the suggestion that the battery claim was merely ‘academic’.148 Lord Neuberger, although dissenting, accepted tort’s ‘ombudsman’ role: ‘the publicity resulting from an action … may do most to protect rights’.149 Lord Carswell, however, disagreed: the civil courts exist to award compensation, not to conduct public inquiries. Nor is it their function to provide explanations … On the contrary, the existence of a sanction by way of damages is the essential mark of a tort.150 In defamation, damages have long been awarded to vindicate and restore the claimant’s reputation. Very substantial awards are routinely made even when a libel has not caused any material (ie economic) loss. Again however, the emphasis on vindicatory damages has been questioned. Arguably it reflects the historical position whereby libel cases were decided by juries – a process that continued much longer than in other torts (eg negligence), ceasing only after the Defamation Act 2013.151 Juries decided liability and assessed damages but did not give reasoned judgments – only a bare unreasoned ‘verdict’. (As is famil- iar from criminal law – the jury announces ‘guilty or not guilty?’, but does not explain why.) In such a system the quantum of damages has to do all the talking – there was literally nothing else the libel jury could say. This has now changed. As elsewhere in tort, judges decide defamation cases and give full reasons. Indeed, the court can now order the defendant to publish a summary of its judgment as an additional remedy.152 But the practice of reasoned judg- ments has not superseded ‘vindicatory damages’ here altogether. In the first 144 ibid (and cf ‘unimportant’ whether ‘vindication should be marked by an award of vindicatory damages or simply a declaration of liability’). 145 ibid. Lord Carswell at noted ‘the Government has declined to order a public inquiry’. 146 Priel (n 4). 147 Compare eg R (Rusbridger) v Attorney General 1 AC 357. 148 Eg Ashley (n 142) – Lord Rodger. 149 ibid citing Clerk & Lindsell on Torts, 19th edn (London, Sweet & Maxwell, 2006), paras 1–10. 150 Ashley (n 142). 151 Yeo v Times Newspapers 1 WLR 971. 152 Defamation Act 2013, s 11. 30 GREAT DEBATES IN TORT LAW case ordering publication of a judgment, the court also awarded £185,000 ‘to convince any fair-minded bystander of the baselessness of the [libel]’.153 While accepting that publication of a vindicatory statement could reduce damages, Sir David Eady reasoned that casual readers of the original libel, if they took any interest in the subsequent litigation, would still ask the question ‘how much did the claimant get in damages?’ Defamation law does not accept Barker’s argument that a reasoned decision is always, of itself, sufficient vindi- cation for the invasion of the right to reputation.154 Rights and Loss Finally we discuss another challenge to the proposed new head of substan- tial ‘vindicatory’ (or ‘normative’) tort damages. Descheemaeker argues that a binary choice must be made: the law can either ‘intrinsically’ remedy the invasion of rights, or it can compensate losses caused by such an invasion, but not both. These are (Descheemaeker claims) logically incompatible. To award both means ‘double counting’ (remedying the wrong twice, risking over- compensation). There is, he suggests, ‘absurdity’ in awarding damages for (eg) ‘distress, pecuniary loss and loss of privacy’.155 Yet the courts have done pre- cisely that. When the privacy of three minors was invaded, two were infants (under a year old) and recovered £2,500 each while the third (aged 16) recovered £5,000: Weller v Associated Newspapers. The difference, apparently, was that the babies had suffered ‘no embarrassment’ (obviously such young chil- dren could not be aware of the publication) whereas the teenage claimant had.156 In Descheemaeker’s view, the award to the blissfully ignorant infants must have remedied their invaded privacy per se; for the teenaged claimant, damages were for her mental distress. Thus both ‘logics’ were used in the same case. Descheemaeker accepts that given the ‘arbitrary amounts’ awarded both for mental distress and for invasion of rights it is difficult to assess whether ‘double counting’ has taken place. In some situations the choice of approach is vital. Certain claimants cannot be distressed by a tort but can still have their rights invaded: the very young, comatose persons, or corporations. However, Descheemaeker complains that English law ‘meanders’ between the funda- mentally distinct approaches. Although compensation of loss is the domi- nant paradigm, sympathetic courts frequently switch to ‘abstract definition of wrong-as-loss in order to grant substantial damages to the claimant’ who has 153 Rahman v ARY Network EWHC 3570 (QB). 154 See further Wilcox (n 119) 395–96 (earlier debates about vindication by judge-only trial, and reasoned judgments, when juries unavailable during World War II). 155 Descheemaeker (n 78) 608 (fn 49). 156 EWHC 1163 (QB), –.  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 31 not suffered any material loss. The result is an ‘unstable equilibrium between two incompatible logics’.157 Descheemaeker identifies an important issue. Every tort involves an ‘invasion of right’ in some sense. The law would be destabilised if every violation jus- tified the award of substantial damages in addition to any compensation for actual, concrete loss. Lord Dyson rejected ‘vindicatory damages’ in Lumba for this reason.158 Even the Weller court noted the risk of ‘double counting’.159 The risk is diminished if ‘vindicatory damages’ are available only in certain torts. There is clear authority that in claims for misuse of private information, compensation ‘can be given for the commission of the wrong itself ’ and ‘to reflect infringements of the right itself ’.160 Lord Leggatt comments: The privacy tort, like other torts for which damages may be awarded without proof of material damage or distress, is a tort involving strict liability for delib- erate acts, not a tort based on a want of care.161 Thus while substantial vindicatory damages have a place in torts such as tres- pass (deliberate infringements of rights), the remedy cannot be read across into torts involving negligent infliction of loss. This variegated picture chimes with Murray J’s view that tort law ‘has not always developed in straight lines towards neatly defined and symmetrically proportioned categories’, and dif- ferent actions may require different approaches.162 Rights and loss have often been run together in English law. But a renewed emphasis on vindication, including the controversy around Lumba which undermines that function in false imprisonment, means such debates will flourish in coming years. Debate 3 Trespass and ‘Constitutional Rights’ Trespass plays an important constitutional role. Its strength, but also its limits, are illustrated by the distinction with other parts of tort law. The rights covered by trespass are deep-rooted, well-protected, and apply against all who infringe them – that is, against public officials as much as private indi- viduals. Hence Weir’s insistence that the trespassory torts protect the foun- dations of individual liberty in English law. Stevens argues that tort enforces our true ‘human rights’ – those that every individual has by virtue simply of being human, protected against all comers. By contrast modern ‘human rights’ (which Stevens suggests should be called state or civil rights) involve 157 Descheemaeker (n 78) 608, 610. 158 Lumba (n 71). 159 Weller (n 156). 160 Gulati v MGN Ltd FSR 12 , (Mann J) (affirmed QB 149). 161 Lloyd v Google 3 WLR 1268. 162 GE (n 89). 32 GREAT DEBATES IN TORT LAW claims against the state to a range of goods ‘as many and varied as the wit of human imagination permits’, coined by legislatures using arguments of public policy.163 The extent of ECHR rights’ ‘horizontal effect’ (against other individuals) remains an important controversy about the Human Rights Act 1998 (HRA). By contrast tort is applicable equally to public and private defendants in the ‘Diceyan’ tradition.164 Weir praised the trespassory torts’ ability to ‘trip up’ ‘the officious citizen’ – as well as ‘the zealous bureaucrat [and] the eager policeman’.165 But trespass has drawbacks too. The strong and deep protection is limited in scope. Tort law as a whole is flexible – of negligence, Lord Macmillan famously remarked that ‘the categories … are never closed’ (given the ‘manifold’ nature of ‘human errancy’).166 By contrast the categories of torts actionable per se are closed, or certainly much less fluid. This will be seen in Watkins v Home Office, discussed below. Why should trespass be limited to its historic concern with direct physical invasions of rights? Buxton LJ reasoned that the advantages enjoyed by a trespass claimant167 provided ‘strong policy reasons why the tort of trespass to the person should be limited to its proper sphere’.168 The boundaries of trespass show the limits of the common law tradition, in which tort law plays the leading role in protection of rights against govern- ment interference. Not everything that the government may wish to do to its citizens involves a tort. Much does, and in such cases trespass can vindicate liberty effectively. Significantly, most of what the police force do to unwill- ing members of the public will prima facie be tortious, for example touching (battery) in the course of arrest, or confinement (false imprisonment) or physi- cal intrusion on land and goods when carrying out searches. As seen, the onus is strictly on the police to show legal authority for what they do, or some other defence. There is no general defence to be found in the elastic (and oppres- sive) concept of ‘state necessity’ as the great case of Entick v Carrington estab- lished (trespass to land and goods).169 But all this heroic protection fades away in the absence of a recognised cause of action in tort. Thus, in the pre-HRA era, the police were not liable when tapping private telephone conversations without legal authority: their conduct was not tortious and there was no need to show any authority.170 In Wainwright v Home Office, again in the absence of 163 R Stevens, ‘The Conflict of Rights’ in A Robertson and TH Wu (eds), The Goals of Private Law (Oxford, Hart, 2009) 145, 163. 164 Robinson v Chief Constable AC 736 (Lord Reed). 165 Weir (n 2) at 322. 166 Donoghue v Stevenson AC 562, 619. 167 Viz actionability per se; no need to establish ‘fair, just and reasonable’ duty of care; and more generous ‘remoteness’ rules. 168 Wainwright v Home Office QB 1334, –. 169 n 55. 170 Malone v Metropolitan Police Commissioner Ch 344.  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 33 a common law tort of privacy invasion, there was nothing tortious about a strip search in the absence of physical contact (battery).171 It was therefore irrelevant that the prison officers, by not following correct procedures, had exceeded their authority under the Prison Rules. The European Court of Human Rights held in each case that English law was deficient in its protection of fundamental rights of privacy, because of the gaps in the law of torts.172 Even when a tort exists, it may not provide the full protection afforded by trespass. The tort of misfeasance in public office has a significant potential role in sanctioning deliberately unlawful behaviour (it is a double exception to the principles that tort law applies to public and private defendants alike, and that bad motive cannot of itself generate liability). Yet unlike trespass, the mis- feasance tort is not actionable per se. This limits its usefulness, as the leading case shows. In Watkins v Home Secretary prison officers had read correspond- ence between the claimant and his solicitors, in knowing breach of the Prison Rules. This behaviour caused the claimant no tangible loss (economic, physi- cal or otherwise). The claimant submitted that this was irrelevant because an important right had been infringed. The Court of Appeal agreed.173 Confiden- tial communication with legal advisers, an aspect of the right of access to the courts, was a fundamental right. Knowingly to intercept such correspondence should be actionable even if no harm resulted. Laws LJ reasoned that con- stitutional rights were the ‘paradigm’ of ‘[the] kind which the law protects without proof of any loss’.174 Yet the House of Lords disagreed.175 A clear line of authority held that actual loss had to be shown as the ‘gist of an action’ for misfeasance in public office. In the absence of tangible loss, the claim therefore failed (and Mr Watkins’ claim for exemplary damages failed with it: there was no liability on which to hang an exemplary award). Watkins v Home Secretary contains notably open discussion about action- ability per se – the hallmark of the trespassory torts. Lord Carswell thought it ‘theoretically possible’ to abolish the requirement of damage altogether: ‘It might not unreasonably be said that any civil wrong should carry damages’. However, such a bold step of making all torts actionable per se should be for the Law Commission to consider.176 Lord Walker (who concurred reluctantly) noted the greater potential for intentional torts (including misfeasance in public office) to be actionable per se.177 The law lords’ hesitancy reflects Stevens’ observation that ‘it is difficult to find a single principle with identifies those wrongs which require proof of loss before they are actionable’, even though the 171 2 AC 406. 172 Malone v UK (1985) 7 EHRR 14; Wainwright v UK (2007) 44 EHRR 40. 173 QB 883. 174 ibid. 175 2 AC 395. 176 ibid –. 177 ibid. 34 GREAT DEBATES IN TORT LAW classification of torts actionable per se ‘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’.178 On Watkins itself, Stevens approves the House of Lords’ decision. Misfeasance does not relate to particular genuine rights, the ‘constitutional rights’ relied on by the Court of Appeal being ‘too uncertain to be an appropriate guide’.179 In Watkins Lord Bingham declared ‘the primary role of the law of tort is to provide compensation for those who have suffered material damage rather than to vindicate the rights of those who have not’.180 (As Varuhas points out, this ‘explicitly conflated negligence’s principal function with that of all torts’.)181 Lord Bingham thought that adequate alternative mechanisms existed to hold public officials accountable if they violated rights without inflicting ‘material damage’. These included disciplinary sanctions, judicial review and criminal prosecution.182 Moreover he reasoned that Parliament envisaged that viola- tions of constitutional rights should be remedied using the HRA 1998, ‘not by development of parallel remedies’ in domestic tort law.183 Lord Rodger thought the whole category of common law ‘constitutional rights’ had been superseded by the HRA. Previously, courts had made ‘heroic efforts’ to dis- cover such rights in domestic law: but such ‘means of incorporation [of the ECHR into English law] avant la lettre’ were no longer necessary following enactment of the HRA.184 Lord Walker appeared sympathetic to generalising the trespassory torts’ vin- dicatory function. Mr Watkins had suffered a ‘deliberate affront’ by having his correspondence read in knowing breach of the rules. Yet ‘whereas even the most trifling and transient physical assault would undoubtedly have given [him] a cause of action in private law for trespass to the person’, he had no tort remedy here.185 (As Lord Walker noted, ‘a far cry from the stirring language of Holt CJ in Ashby v White’.)186 However the rest of the House of Lords in Watkins distinguished trespass sharply. Other mechanisms, most prominently the HRA, were now preferable to control public authorities and vindicate rights. Which view is correct? Bills of Rights, such as the ECHR, clearly list individuals’ rights and free- doms. They have declaratory power. They are a prominent explicit political 178 Stevens (n 19) 89. 179 ibid 90. 180 2 AC 395,. 181 Varuhas (n 6) 165. 182 Cf Lord Walker, Watkins (n 175) at (‘rather sceptical’ about these alternative remedies’ effectiveness). 183 ibid. 184 ibid. Compare generally M Elliott and K Hughes (eds), Common Law Constitutional Rights (Oxford, Hart, 2020). 185 (n 175). 186 (1703) 1 Sm LC (13th edn) 253.  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 35 statement of the most vital human interests according to contemporary per- ceptions. Despite Stevens’ jibes, these typically comprise the interests central to classic tort law (eg life, liberty, possessions) as well as many others that tort does not protect straightforwardly or at all (privacy; freedom of speech, reli- gion and association; non-discrimination). Naturally such declarations evolve with time and may be amended. Rights to ‘peaceful enjoyment of possessions’, education and free elections were added in the ECHR’s First Protocol (1952): none of these seems a whimsical flight of imagination. Contrast the relatively static nature of tort law. It also acts more quietly. The trespassory torts power- fully protect intrinsic human goods. While this might be obvious to tort schol- ars, tort law does not proclaim its rights with the same fanfare as the ECHR. It scarcely has the same status in public and political discourse. As Priel notes, the common law was never in the business of going around declaring abstract rights of any kind.187 The courts historically placed remedies and actions first: and working back from that concrete protection, the rights may be said to have emerged indirectly. Sprinkled with the intellectual stardust of Latin: ubi reme- dium, ibi ius. Some would defend the wisdom of the common law. The problem with abstract declarations is that they often promise more than they deliver. Appear- ances can deceive. The 1977 USSR Constitution contained one of the most impressive lists of individual civil and political rights in the world. But these were essentially meaningless – in practice unenforceable because no mecha- nisms (such as independent courts) existed for individuals to exercise them. That sounds like an extreme case.188 But recall that although Britain was the first state to sign the ECHR in 1950, only 50 years later was the ECHR enforceable in domestic UK courts (when the HRA 1998 came into force). At time of writing (2022) the Government is contemplating significant reforms to the 1998 system.189 Better, perhaps, to guarantee protection by real remedies arising from the long history of the common law – which it would be very diffi- cult for a hostile government to suspend or repeal. Dicey claimed ‘nothing less than a revolution’ would be required to destroy rights ‘inherent in the ordi- nary law of the land’.190 There could yet be value in tort law’s traditional con- stitutional role. 187 Priel (n 4) 194. 188 NB AV Dicey, Introduction to the Study of the Law of the Constitution 8th edn (London, Macmillan, 1915) 117 thought that ‘foreign constitutionalists’ generally had placed too much emphasis on abstract rights and ‘insufficient attention on the absolute necessity for the provision of adequate remedies’ to enforce them. 189 Ministry of Justice, A Modern Bill of Rights: A consultation to reform the Human Rights Act 1998 (CP 588, 2021). 190 Dicey (n 188) 120. 36 GREAT DEBATES IN TORT LAW Debate 4 ‘Informed Medical Consent’ – Which Tort? The trespassory torts have a curiously limited role concerning consent to medical procedures. Doctors have a duty of care to inform patients about the risks of contemplated/recommended medical procedures. The landmark deci- sion in Montgomery v Lanarkshire Health Board established that it is for the court to decide whether sufficient information was given for an informed choice to be made by the patient.191 Baroness Hale said the restated law pro- tects patients’ ‘autonomy, their freedom to decide what shall and shall not be done with their body’.192 For as Lord Donaldson MR previously observed: Prima facie, in the absence of consent all, or almost all, medical treatment and all surgical treatment of an adult is unlawful, however beneficial such treatment might be. This is incontestable.193 The curiosity is that these rights are protected within the framework of negli- gence. It might seem more natural for a patients who did not give full (informed) consent to a procedure to claim in battery. Cardozo J once stated: Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an opera- tion without his patient’s consent commits an assault.194 As Lord Goff accepted, ‘we have to bear well in mind [Cardozo J’s] libertar- ian principle of self-determination’.195 Why then does English law deal with the issue of informed consent within negligence? Should we rely instead upon tres- pass to protect ‘patient autonomy’? Are there practical implications or is this simply an abstract question about classification? That negligence is the appropriate claim is well established in English law: once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass.196 Lord Diplock traced the rule back at least to 1767 (when a trespass claim for surgical injuries was dismissed ‘with scant sympathy’): in his view, all aspects of 191 AC 1430. 192 ibid. 193 In Re F (Mental Patient: Sterilisation) 2 AC 1, 12. 194 Schloendorff v Society of New York Hospital (1914) 105 NE 92, 93. 195 In Re F (n 193) 73. 196 Chatterton v Gerson QB 432, 443.  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 37 doctors’ duties to patients fall within negligence.197 Lord Scarman thought ‘it would be deplorable to base the law in medical cases of this kind on the torts of assault and battery’.198 No reason apart from precedent appears from these unequivocal statements. Could one unstated concern be criminal not tortious liability? Imagine that a doctor surgically removes a diseased organ. Imagine further that the patient was given insufficiently detailed information about the risks of the operation. Does that mean that the patient did not (and could not) validly consent? If not, it seems that the doctor would be guilty of exceptionally serious crimes: wound- ing with intent to do grievous bodily harm.199 For the only thing that legally distinguishes a surgical incision from a pub-brawl stabbing is the patient’s consent to being cut open. In the criminal context, recognising patient consent when risks were explained ‘in broad terms’ makes obvious good sense. A doc- tor’s failure to be insufficiently detailed might disrespect patients’ autonomy and dignity, but that is far removed from an offence with a sentencing range of three to 16 years’ custody (Sentencing Council guidelines for section 18). If this is the reason for the ‘negligence’ classification, then could it be addressed by formally separating tort and crime at this point,200 or at least using differ- ent labels? Beever argues that traditional tort terminology’s ‘connection with the criminal law’ involves ‘connotations that do not readily apply to surgeons acting in what they consider to be the best interests of their patients’.201 Nevertheless, Beever maintains that trespass to the person should be the proper action: battery vindicates patients’ rights to autonomy over their bodies in a way that negligence does not and cannot.202 Damage is the gist of the action in negligence. That confines its use to situations where a doctor ‘care- lessly’ omits to provide sufficient information and that failure causes the patient to sustain an injury – for example where, had she been informed, the patient would not have proceeded with treatment which has caused side-effects or complications. (Montgomery is a clear example.) But what if the patient would have gone ahead anyway? Or what if they would have refused, but the opera- tion has actually been entirely successful? In neither case is there any loss neces- sary as the basis for a negligence claim. The problem that Beever identifies has been faced by the courts but given rather an awkward solution. Chester v Afshar imposed negligence liability even though the claimant would still have had the operation, had she been warned of the risk of paralysis (which then, unfortunately, occurred). This was acknowledged as an exception to the normal rules on causation (since the 197 Sidaway v Bethlem Royal Hospital AC 871, 892, 894. 198 ibid 883. 199 Offences against the Person Act 1861, s 18. 200 Eg Tan Keng Feng, ‘Failure of Medical Advice: Trespass or Negligence?’ (1987) 7 Legal Studies 149 (defining consent differently in tort and crime). 201 Beever (n 53)) 244. 202 ibid ch 15. 38 GREAT DEBATES IN TORT LAW failure to inform had not increased the risk of the side-effect occurring). The House of Lords majority thought such an exceptional approach necessary to ‘vindicate’ the ‘autonomy and dignity’ of a patient who had not given her ‘informed consent to the surgery in the full legal sense’.203 But this seems odd. Surely (as Beever says) the violation of that autonomy occurred as soon as the surgeon operated without the patient’s full consent – and not at the later point when the ‘gist damage’ manifested itself as paralysis. A strong objection to Chester v Afshar is that it made the doctor liable for physical injures that he did not cause in order to vindicate a different right – not a right to be protected against physical injury, but the right to choose. Lord Hoffmann dissented. The majority’s reasons did not justify their deci- sion. A different wrong was at stake: ‘Even though the failure to warn did not cause the patient any damage, it was an affront to her personality and leaves her feeling aggrieved’.204 He wondered whether a ‘solatium’ should be awarded (ie damages to soothe the affront), but concluded that ‘the cost of litigation [makes] the law of torts an unsuitable vehicle for distributing the modest compensation’.205 But that seems questionable. Lord Hoffmann surely cannot intend to doubt the actionability per se of trespass which causes no concrete harm. His reference to the ‘ordinary principles of tort’206 really means the ordinary principles of negligence law, where concrete loss is the gist of the action. If ‘flawed consent’ cases were viewed as battery rather than negligence claims, the remedy for invasion of rights that Lord Hoffmann dismissed as an expensive novelty would be available on ordinary principles. Chester v Afshar did violence to the rules on causation of damage to ensure a damages remedy for the patient who suffered side-effects that the operation had not caused. What if the procedure is a total success? In negli- gence, no claim could be made. There would be no injury. It has been held ‘contrary to principle’ to award damages where an operation has turned out successfully, even if the patient did not give fully informed consent.207 (Nor was the court willing to recognise a new, free-standing head of damages for ‘invasion of autonomy’.)208 Yet the violation of dignity and autonomy (when the doctor embarks on the procedure) is independent of the ultimate consequences. Tort law purports to protect patient autonomy to reject medical intervention ‘however beneficial’. As Beever says, it fails to live up to its own pronouncements. 203 1 AC 134 (Lord Steyn); see further (Lord Hope). 204 ibid. 205 ibid. 206 ibid. 207 Shaw v Kovac 1 WLR 4773 (Davis LJ). 208 Discussed by C Purshouse, ‘Autonomy, Affinity, and Assessment of Damages’ (2017) 26 Medical LR 675 (concluding that autonomy is too ‘nebulous’, ‘slippery’ and ‘over-inclusive’ to constitute actionable damage in negligence – while criticising Shaw v Kovac’s ‘scant’ reasoning).  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 39 Negligence could generalise from Rees v Darlington, and treat ‘invasion of autonomy’ as compensable harm (ie as ‘gist damage’).209 All informed consent cases could then be dealt with under the tort of negligence. But this approach was directly rejected in Shaw v Kovac (and implicitly by Lord Hoffmann in Chester v Afshar). The paradigm requiring concrete physical harm in negli- gence is hard to shift; examples to the contrary, like Rees, are deemed anoma- lous. Negligence focuses on protecting welfare, not choices. No wonder that tort did a poor job of protecting the patient’s right to choose in Chester.210 By con- trast, trespass focuses on the invasion of rights. Non-consensual medical treat- ment would in itself attract substantial damages.211 There is a strong argument for reviewing Chatterton v Gerson and reclassifying ‘informed consent’ cases as trespass to the person.212 The emphasis would be vindication of patients’ rights to make informed choices. CONCLUSION: NEGLIGENCE AND TRESPASS DISTINGUISHED Many accept the trespass torts’ distinctive role in the vindication of certain rights. Their historical function still remains relevant. Arthur Ripstein defends the place of ‘sovereignty torts’.213 For Ripstein, tort law should address not just wrongful loss but also ‘despotism’ – whether of the state or other indi- viduals. An example of ‘private despotism’ would be a dentist surreptitiously administering fluoride to a patient known to object to fluoridation. The dentist would usurp the patient’s sovereign right to decide how their body is should be treated. More generally: Intentional touching is objectionable even if harmless or undetected, or the injury is small. Your person – your body – is yours to use for your own pur- poses, and if I take it upon myself to touch you without your permission I use it for a purpose you have not authorized. … I violate your independence by using your powers for my purposes. … Sovereignty can only be violated by the intentional deeds of others, because it is an interest in independence of those deeds.214 209 Rees v Darlington NHS Trust 1 AC 309 (see ch 8, ‘“Loss of Autonomy” as Actionable Damage?’). 210 T Clark and D Nolan, ‘A Critique of Chester v Afshar’ (2014) 34 OJLS 659. 211 Lumba (n 71) may enable a doctor to argue that the patient would (if informed) have given consent to reduce damages to nothing: see Debate 2. 212 Cf Clark and Nolan (n 210) battery ‘impractical and inappropriate’ (not every case involves physical contact (eg prescribing drugs that patient self-administers); distinction between consent based on incomplete information and deceptive/wholly non-consensual medical treatment). 213 A Ripstein, ‘Beyond the Harm Principle’ (2006) 34 Philosophy & Public Affairs 215. 214 ibid 235, 239. 40 GREAT DEBATES IN TORT LAW Ripstein thus justifies distinct tortious protection against intentional touching even in the absence of concrete loss. Stevens is also sensitive to the distinction: 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 deserv- ing of protection irrespective of the consequences of violation.215 Further, as Keating says, when autonomy is at stake the defendant’s fault in the invasion of the right is ‘simply irrelevant’ – ‘the right itself would be fatally compromised by tolerating all reasonable (or justified)’ invasions without the claimant’s consent.216 Beever notes that identifying a right to ‘bodily integrity’ does not of itself explain tort law’s complex pattern of protection.217 That right is harmed by both a road accident and a punch in the face. It cannot explain tort law’s sharp differences: the requirements of carelessness and loss in the road accident (negligence), requirements of intended direct contact for the punch (battery). Beever instead justifies the law’s stricter protection against intentional touching because of its greater impact on the claimant’s freedom. Someone who inten- tional invades the person (or property) of another asserts control over them. This is ‘coercive’ – a clear violation of the claimant’s freedom.218 Trespass epit- omises ‘torts of control’ – unwanted kisses or kindly meant medical treatment are just as ‘paradigmatic’ here as conduct causing material harm. They violate the right to choose what happens to our bodies.219 Doctrinally then, trespass’s actionability per se is not anomalous but of vital importance. It protects against coercive behaviour, irrespective of actual loss. Beever finds trespass’s require- ment of a ‘direct’ physical invasion harder to justify, suggesting this malleable concept is applied to track ‘control’ of the claimant by the defendant.220 Negligence, he argues, is entirely different. Accidents do not involve controlling the claimant.221 Rather, claimants are injured incidentally by defendants pursuing their own projects. In such situations, the freedom of claimants and the freedom of defendants must be balanced against each other. Broadly, by protecting claimants against loss which would deprive them of the means of pursuing their life projects.222 It would be too restric- tive of defendants’ freedoms to impose strict liability for all accidental 215 Stevens (n 19) 89. 216 GC Keating, ‘Is the Role of Tort to Repair Wrongful Losses?’ in A Robertson and D Nolan (eds), Rights and Private Law (Oxford, Hart, 2012) 400. 217 Beever (n 53) 2–3. 218 ibid ch 2. 219 ibid ch 4. 220 ibid 61–67. 221 ibid 54. 222 ibid ch 2.  TRESPASS: TORT AND THE VINDICATION OF RIGHTS 41 losses.223 The common law’s objective negligence standard balances claim- ants’ and defendants’ freedom.224 There are various ways to defend a distinct place for trespass. Pace Howarth’s critique, affording greater protection for victims of intentional (or ‘coercive’ or ‘controlling’) behaviour may not merely be tort law’s excuse for not making up its mind whether certain interests deserve legal protection or not.225 (Howarth’s thesis is that expansion of the interests protected against intentional violation follows from a restrictive law of negligence: pure eco- nomic loss being the central example, cf the intentional economic torts.) This chapter suggests the value of trespass protecting certain rights through strict liability and actionability per se. But the powerful negligence principle threat- ens to erode this function. In addition to the insidious ‘genuine and reasonable belief ’ defences criticised by Weir, Lumba even allows defendants to argue ‘if I hadn’t have behaved unlawfully I’d have behaved lawfully’ to bar a claim for substantial (rather than nominal) damages, even though the argument would be impermissible at the stage of justifying the trespass. But in other areas, as debates above about consent to medical treatment suggest, trespass could be due for a renaissance – expanding from its traditional