Tort Law

Tort Law Origin, Evolution and Modern Trends

Introduction to Tort Law The word “tort” derives from the old Norman/French equivalent for “wrong.” At each time of the day, people suffer a variety of “wrongs”, either to their person or dignity or property or wealth but tort law does nor concern itself with the manifold variety of perceived “wrongs.” Rather, it concerns itself only with “ a civil wrong, other than a breach of contract, which the law will redress by an award of damages” (Fleming, 9th ed., at 1) 

The Scope of Tort Law 

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According to Justice La Forest, “a tort exists where the law says it exists.” These circular definitions reiterate the character of tort law as essentially, a system of ‘judge-made’ law. Modern tort law evolved from the decisions of premedieval English courts in which certain acts were held to create legal liability and deserving of remedies. The early precedents were later distilled into what was known as “forms of action” Tort law determines whether a particular conduct is a “wrong” and if so, applies a remedy.

The Rise and Dominance of Writs of Action 

Early tort law was circumscribed by the writs issued by the Chancery and forms of action. The writ obtained in the King’s court commands the defendant to appear in court and make a defence. The form of action summarized the plaintiff’s case. Where there was no appropriate form of action, there was no justiciable wrong. In effect, unless an alleged tortious act was covered by a preordained writ and form of action, such conduct could not be impleaded in the King’s Court.

Forms of Action 

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There was a near infinite variety of writs and forms of action but the ascendancy of forms of action in early common law was near absolute. (Maine, Early Law and Custom, at 389). The forms of action determined such things as: jurisdiction, method of appearance, type of trial, nature of judgment, 4, method of recovery of judgment, etc. “The forms of action rule us from their graves.” (F.W. Maitland, The Forms of Action)

The Evolution of Tort Law 

The dominance of writs and forms of action ensured that there was no grand or universal “concept” or “Theory” of tort law. Individual torts reigned supreme. Each writ was tied to the particular cause of action appropriate to its circumstance and as specified in the form of action. There were specific writs for “nuisance’, “trespass”, “negligence”, etc. A defendant could escape liability by raising infinite technical points against the writ or form of action.

The Evolution of Tort Law While we are no longer under the tyranny of writs, modern tort law is a product of centuries of improvisation, creation, elaboration, and modification.  Contemporary remedies which are available include award of damages, injunctions, permission to engage in self-help, et cetera. 

Elements of Tort Law 

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Conduct deemed to be tortious must possess certain qualities or characteristics. First, the alleged conduct or omission must have harmed the plaintiff or in some cases must threaten to cause her harm. Second, the actual harm or threatened harm must be such as the law recognizes as being potentially remediable. Third, the law must recognize the harm as justiciable. (Fridman, at 5)

The Courts and Element # 2 

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The point raised by element #2 is that the law courts have over the centuries displayed remarkable creativity and dexterity is reworking the nature or types of activities that are potentially remediable. In other words, courts create torts. For example, nervous shock, procuring the breach of a contract, and negligent misrepresentation occasioning economic harm were hitherto regarded as non-justiciable harms. Today, they are harms justiciable in law.

Harm and Liability in Tort 

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Although the category of potentially remediable harms has increased significantly, and continues to increase, not all instances wherein harm is caused would we inexorably infer the existence of a tort. In order for a conduct to amount to a tort, it must (a) have been declared in the past or may be declared by a court in the future as such; and (b) cause harm recognized by law as being remediable

Tort Law and Others 

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In some respects, tort and criminal law are related. Both regimes operate on the basis of duties imposed by law, those duties are generally owed to all regardless of one’s consent or assent. There are differences between a tort and a crime. For the latter, there can be no liability if there is no clearly defined crime. Second, while tort law is concerned with redress, criminal law deals with punishment. This latter distinction seems to have been blurred by the award of punitive damages.

Tort Law and Others (Cont’d) 

Modern scholars have also attempted to differentiate tort law from other regimes on the basis that it provides a framework for the articulation and protection of various interests possessed by members of society. Interference with or harm to such interests, without acceptable or reasonable reason for such interference or harm is actionable at the instance of the aggrieved party. This theory justifies the recognition of new “interests” and the modification of old ones.

Tort Law and Others (Cont’d) 

Given that “interests” morph or develop over time, there is often a time law between social/scholarly articulation of such “interest/s” and the legal recognition of such “interest/s.” Oftentimes, the courts persist in the fiction that they are not creating new torts but are only fine tuning old law to serve novel or contemporary needs.

The Utility of Tort Law Like other branches of law, tort law ostensibly serves some purposes. These are:  Keeping the Peace of the Crown;  Compensation to the injured party;  Deterrence, eg, punitive damages  Normative Signifier (maintenance of or setting the standards of behavior) 

Stare Decisis and Tort Law 

Given the dominance of judicial reasoning and judge-made law in the law of torts, significant attention ought to be paid to the reasoning of the court and where necessary, the dissenting views of judges. It is in the reasoning of the court plus the actual decisions that the law would be found. In a few cases, statutory provisions will be examined. It is however, in the opinion of the courts that we shall devote our energies and intellect.