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Tort: the story on HearLore | HearLore
Tort
In the Zhou dynasty, during a time of famine, a man sent his slave to steal grain from another's barn, and the court ordered the thief to return double the amount of grain to the victim. This ancient case from China represents one of the earliest known instances of what we now call a tort, a civil wrong that causes loss or harm and results in legal liability. While modern legal systems distinguish sharply between civil and criminal law, ancient Chinese law did not clearly separate these concepts, yet the principles of compensation for personal injury and property damage were already taking shape. The Qin Code later introduced the concept of subjective fault, requiring compensation for damage to borrowed farm equipment if the damage was caused by the condition of the equipment when borrowed. These early legal frameworks laid the groundwork for the sophisticated tort systems that would eventually develop across the globe, from the Germanic compensatory fines of Anglo-Saxon England to the codified civil laws of modern Europe and Asia.
Anglo-Saxon Roots
The word tort first appeared in a legal context in the 1580s, but the concept of compensating wrongs dates back to the Germanic system of compensatory fines that operated without clear distinction between crimes and other wrongs. In Anglo-Saxon law, most wrongs required payment in money to the wronged person or their clan, with fines known as wite paid to the king or court holder for disturbances of public order. The weregild, a fine imposed on those who committed murder, was designed to prevent blood feuds, while items or creatures that caused death were destroyed as deodands. Alfred the Great's Doom Book distinguished unintentional injuries from intentional ones, defining culpability based on status, age, and gender. After the Norman Conquest, fines were paid only to courts or the king, quickly becoming a revenue source, and a wrong became known as a tort or trespass. The petty assizes established in 1166 provided remedies for interference with possession of freehold land, while the trespass action became an early civil plea where damages were paid to the victim or the defendant was imprisoned. By the 1250s, the writ of trespass was created and made available by right, though it was restricted to interference with land and forcible breaches of the king's peace. The English Judicature Act passed between 1873 and 1875 abolished the separate actions of trespass and trespass on the case, merging them into a more unified system.
The Negligence Revolution
The modern tort of negligence was established through the landmark Scottish case of Donoghue v Stevenson in 1932, which brought England into line with the United States and defined negligence as a breach of the duty of care owed by one person to another from the perspective of a reasonable person. Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill, but she could not sue for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts: duty, breach, damages, and causation. This case followed the earlier American decision in Brown v. Kendall, which had credited the appearance of negligence in the United States, but Donoghue v Stevenson established it as a distinct tort. The case of Palsgraf v. Long Island Railroad Co. in 1928 heavily influenced British judges in the 1932 House of Lords case, demonstrating how American jurisprudence had begun to shape English law. Oliver Wendell Holmes, Jr. wrote on the subject in the 1880s, and his writings have been described as the first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain. The development of negligence transformed tort law from a system focused on intentional wrongs to one that could address unintentional injuries caused by carelessness, particularly as transportation improved and carriages became popular in the 18th and 19th centuries.
When did the word tort first appear in a legal context?
The word tort first appeared in a legal context in the 1580s. This term emerged after the Norman Conquest when fines were paid only to courts or the king and a wrong became known as a tort or trespass. The concept of compensating wrongs dates back to the Germanic system of compensatory fines that operated without clear distinction between crimes and other wrongs.
What is the landmark case that established the modern tort of negligence?
The modern tort of negligence was established through the landmark Scottish case of Donoghue v Stevenson in 1932. Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill, but she could not sue for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts: duty, breach, damages, and causation.
How does Indian tort law differ from English tort law regarding hazardous activities?
Indian tort law includes a system of absolute liability for businesses engaged in hazardous activity established by the landmark case of M. C. Mehta v. Union of India in 1987. This doctrine holds an enterprise absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from the operation of hazardous activity. This differs greatly from the English approach, which limits liability to damage to land or interests in land.
When did New Zealand scrap the tort system for personal injuries?
The tort system for the majority of personal injuries in New Zealand was scrapped with the establishment of the Accident Compensation Corporation following recommendations from the Royal Commission in 1967. Professor Patrick Atiyah's scholarship in Accidents, Compensation and the Law in 1970 articulated the rationale for eliminating personal injury torts. The tort system for medical malpractice was also scrapped in New Zealand as part of this no-fault compensation scheme.
Which year did the Supreme Court of India recognize privacy as a constitutional right?
The Supreme Court recognized privacy as a constitutional right in India in 2017. The right to privacy is implicit in Article 21 of the Constitution of India, which guarantees protections for personal liberties. In contrast, neither intentional infliction of emotional distress nor negligent infliction of emotional distress is recognized as a tort in Indian jurisprudence.
While common law jurisdictions derive their tort law from customary English tort law, civil law jurisdictions largely derive their principles from Roman law, creating a fundamental schism in how legal systems approach civil wrongs. In civil law countries based on civil codes, both contractual and tortious or delictual liability is typically outlined in a civil code based on Roman Law principles, whereas common law jurisdictions establish rules primarily through precedent and theory. The term delict is used in Scots and Roman Dutch law to refer to tortious liability, and in South Africa and neighboring countries, the Roman-Dutch law of delict is in force, having been preserved after the United Kingdom annexed Dutch settlements. France's tort liability, known as responsabilité extracontractuelle, stems from the Napoleonic Code, which together with the German Bürgerliches Gesetzbuch forms the basis for private law in the majority of civil law countries. German tort law is codified in Book 2 of the BGB, which provides for damages in circumstances where there is no contractual relationship between the plaintiff and the defendant, protecting legal interests such as life, body, health, freedom, and property. The BGB represents a school of legal jurisprudence heavily shaped by 19th century classical liberalism, placing great emphasis on minimizing impairment to individual freedom of action, in contrast to the Napoleonic Code, which placed greater emphasis on the protection of individuals from the actions of others.
The Indian Exception
Indian tort law uniquely includes remedies for constitutional torts, which are actions by the government that infringe upon rights enshrined in the Constitution, as well as a system of absolute liability for businesses engaged in hazardous activity. The landmark case of M. C. Mehta v. Union of India in 1987 established the doctrine of absolute liability, where an enterprise is absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from the operation of hazardous activity. This differs greatly from the English approach, which limits liability to damage to land or interests in land, whereas Indian courts have developed this rule into a distinct principle that includes all kinds of resulting liability. The case of Rudul Sah v State of Bihar in 1983 served as a landmark on illegal detention, and constitutional torts in India serve the role played by administrative courts in many civil law jurisdictions. Conduct which gives rise to a cause of action under tort law is additionally criminalized by the Indian Penal Code, originally enacted in 1860, and the torts of assault, battery, and false imprisonment are interpreted by Indian courts with reference to analogous crimes outlined in the code. This unique blend of common law principles with constitutional remedies and absolute liability creates a system that functions as a branch of administrative law rather than private law, extending tort law as it applies between private parties to address unlawful administrative and legislative action.
The Privacy Paradox
In Canada's common law provinces, there is currently no consistent approach to the tort of invasion of privacy, with four provinces creating a statutory tort while Ontario has recognized the existence of the tort of intrusion upon seclusion. British Columbia has held that the tort does not exist in that province under the common law, and unlike Ontario and most jurisdictions in the United States, Indian tort law does not traditionally recognize a common law tort of invasion of privacy or intrusion on seclusion. Nevertheless, there is a shift in jurisprudence toward recognizing breach of confidentiality as an actionable civil wrong, and the Supreme Court recognized privacy as a constitutional right in India in 2017. The right to privacy is implicit in Article 21 of the Constitution of India, which guarantees protections for personal liberties, and proponents of protection for privacy under Indian tort law argue that this right should be actionable. In contrast, neither intentional infliction of emotional distress nor negligent infliction of emotional distress is recognized as a tort in Indian jurisprudence, though claims seeking damages for infliction of emotional distress were historically an accessory claim in a tort action alleging another distinct tort. The doctrine has evolved in North America into a stand-alone tort, while English jurisprudence has evolved to typically recognize only recognized psychiatric injuries as grounds for compensation.
The Compensation Lottery
In New Zealand, the tort system for the majority of personal injuries was scrapped with the establishment of the Accident Compensation Corporation, a universal system of no-fault insurance that secured equality of treatment for victims regardless of whether or the extent to which they or any other party was at fault. Professor Patrick Atiyah's scholarship in Accidents, Compensation and the Law in 1970 articulated the rationale for eliminating personal injury torts, with his original proposal being the gradual abolition of tort actions and their replacement with schemes like those for industrial injuries to cover for all illness, disability and disease, whether caused by people or nature. The tort system for medical malpractice was also scrapped in New Zealand, following recommendations from the Royal Commission in 1967 for a no-fault compensation scheme. In the United States, a survey of trial lawyers identified several modern innovations that developed after the divergence of English and American tort law, including strict liability for products based on Greenman v. Yuba Power Products, the limitation of various immunities, comparative negligence, broader rules for admitting evidence, increased damages for emotional distress, and toxic torts and class action lawsuits. However, there has also been a reaction in terms of tort reform, which in some cases have been struck down as violating state constitutions, and federal preemption of state laws, creating a complex landscape where the availability of discovery enables plaintiffs to essentially carry out a private investigation, yet also creates the possibility that a plaintiff filing suit in good faith may not find enough evidence to succeed.