The Influence of ‘Loss’ in the Property Torts

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Abstract

The modern dominance of negligence in tort law has, at least in the eyes of some, caused an emphasis on loss and compensation as the primary role of tort law. This paper argues that this concern with loss/loss-thinking has infiltrated the property torts and has implications for the rules regulating who can bring a claim, and for the development of the torts. While the standing rules on paper are based on some property right, due to the tortious classification of these actions, ‘normal tortious thinking’ about the importance of loss (widely defined) informs (consciously or unconsciously) the development of the case law and as a result the actions themselves. This often creates a move away from property protection and rules, undermining the protection of property, though this is not a given and recent cases in private nuisance show how a strong dicta on the role and nature of the property torts can stop such a slide into negligence and loss-thinking.
Original languageEnglish
Pages (from-to)426-443
JournalKing's Law Journal
Volume31
Issue number3
Publication statusPublished - 11 Nov 2020

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