Tort
The word tort first appeared in legal writing during the 1580s to describe a civil wrong distinct from breach of contract. A person who commits such an act is called a tortfeasor, and their actions result in legal liability for causing loss or harm to another party. Tort law aims to compensate individuals who suffer harm as a result of the actions of others rather than punishing them like criminal law does. While criminal law deals with offenses punishable by the state, tort law focuses on redress for private injuries through compensation in damages or money. Some wrongful acts like assault and battery can lead to both a civil lawsuit and a criminal prosecution where systems are separate. Obligations in tort and criminal law are more fundamental and imposed regardless of whether parties have a contract. In common law jurisdictions, successful claimants must show they suffered foreseeable loss or harm directly resulting from a breach of duty. Legal injuries addressable under tort law include physical injuries, emotional distress, economic losses, reputational damage, privacy violations, property rights breaches, and constitutional right infringements.
Torts and crimes in common law originate in the Germanic system of compensatory fines for wrongs without clear distinction between crimes and other wrongs. In Anglo-Saxon law most wrongs required payment in money paid to the wronged person or their clan. Fines known as wite were paid to the king or court holder for disturbances of public order while weregild was imposed on those committing murder to prevent blood feuds. 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. A wrong became known as a tort or trespass creating division between civil pleas and pleas of the crown. The petty assizes established in 1166 provided remedies for interference with possession of freehold land including novel disseisin mort d'ancestor and darrein presentment. The writ of trespass created in the 1250s became available by right not fee restricting itself to interference with land and forcible breaches of the king's peace. Later after the Statute of Westminster 1285 the action on the case arose in the 1360s when defendants did not direct force. The English Judicature Act passed between 1873 and 1875 abolished separate actions of trespass and trespass on the case. In 1401 the English case Beaulieu v Finglam imposed strict liability for escape of fire and release of cattle. Negligently handling fire was particularly important given capacity for destruction and limited firefighting resources. Liability for common carrier arising around 1400 was emphasized in the medieval period. Unintentional injuries remained relatively infrequent until transportation improved and carriages became popular in the 18th and 19th centuries making collisions and carelessness prominent in court records.
The tort of negligence is a cause of action leading to relief designed to protect legal rights from unintentional actions causing legal harm. To win an action for negligence a plaintiff must prove duty breach causation scope of liability and damages. Although credited as appearing in the United States in Brown v Kendall the later Scottish case of Donoghue v Stevenson [1932] AC 562 brought England into line with the United States establishing the tort of negligence. In Donoghue Mrs. Donoghue drank from an opaque bottle containing a decomposed snail claiming it made her ill. She could not sue Mr. Stevenson for damages for breach of contract instead suing for negligence. The majority determined definition of negligence can be divided into four component parts: duty meaning defendant has duty to others including plaintiff to exercise reasonable care; breach where defendant breaches that duty through act or culpable omission; damages where plaintiff suffers injury as result of act or omission; and causation where injury is reasonably foreseeable consequence under proximate cause doctrine. Some jurisdictions narrow definition down to three elements while others recognize five including actual cause and proximate cause. In Singapore current leading case Spandeck Engineering v Defence Science and Technology Agency builds on Anns by establishing two step test comprising analysis of proximate cause and public policy as universal test independent from individual circumstances. In English law Caparo Industries plc v Dickman established tripartite test per which harm must be reasonably foreseeable parties must be in relationship of proximity and it must be fair just and reasonable to impose such duty. Intentional torts are any intentional acts reasonably foreseeable to cause harm to individual doing so. Subcategories include torts against person like assault battery false imprisonment intentional infliction emotional distress and fraud. Property torts involve intentional interference with property rights including trespass to land trespass to chattels and conversion. Dignitary torts affect honor dignity and reputation including defamation invasion of privacy breach of confidence malicious prosecution abuse of process.
Tort law globally was viewed as relatively undeveloped by mid-19th century first American treatise published 1860s subject became particularly established when Oliver Wendell Holmes Jr wrote on subject 1880s. Holmes writings described as first serious attempt common law world give torts coherent structure distinctive substantive domain. The 1928 US case Palsgraf v Long Island Railroad Co heavily influenced British judges 1932 House of Lords case Donoghue v Stevenson. United States perceived particularly prone filing tort lawsuits even relative other common law countries though perception criticized debated. English welfare state providing free healthcare victims injury may explain lower tendency personal injury lawsuits England similar observation made regarding Australia. Indian tort law uniquely includes remedies constitutional torts actions government infringe rights enshrined Constitution system absolute liability businesses engaged hazardous activity outlined rule M. C. Mehta v Union of India. Landmark case Rudul Sah v State of Bihar 1983 4 SCC 141 illegal detention served role administrative courts many civil law jurisdictions much function constitutional review other jurisdictions functioning branch administrative law rather private law. Within Canada's common law provinces currently no consistent approach tort invasion privacy four provinces British Columbia Manitoba Newfoundland Saskatchewan created statutory tort Ontario recognized existence tort intrusion upon seclusion held exist under tort law United States. British Columbia held tort does not exist province under common law. Like United Kingdom and British Columbia unlike Ontario most jurisdictions United States Indian tort law traditionally recognize common law tort invasion privacy or intrusion on seclusion nevertheless shift jurisprudence toward recognizing breach confidentiality actionable civil wrong. Proponents protection privacy under Indian tort law argue right to privacy implicit Article 21 Constitution India guarantees protections personal liberties. Supreme Court recognized privacy constitutional right 2017 neither intentional infliction emotional distress nor negligent infliction emotional distress recognized tort Indian jurisprudence.
Compensation by way damages typically default remedy available plaintiffs injunctions specific performance relatively rare tort law cases. Relatively uniquely common law jurisdiction Singapore Community Disputes Resolution Act 2015 CDRA alters common law codifying statutory tort interference enjoyment use place residence provides variety remedies beyond damages ranging injunctions specific performance court-ordered apologies. Where court order providing remedy other than damages awarded under CDRA violated sections 5-8 act require plaintiff apply special direction issued enforce original remedy section 9 provides failure comply special direction grounds court issue order excluding tortfeasor from residence. Aside legislatively created remedies courts common law jurisdictions typically provide damages depending jurisdiction may include punitive damages judges issue injunctions specific performance deem damages not sufficient remedy. Legislatures various common law jurisdictions curtailed ability judges award punitive other non-economic damages through non-economic damages caps other tort reform measures. Three principal defenses tortious liability common law jurisdictions: consent warning victim cannot hold another liable if victim implicitly explicitly consented engage risky activity frequently summarized maxim volenti non fit injuria Latin to willing person no injury done no injury done person consents. Many cases engaging risky activities asked sign waiver releasing another party liability. Spectators certain sports assumed accept risk injury such hockey puck baseball striking member audience. Warnings defendant may also provide defense depending upon jurisdiction circumstances arise duty care landowners guests trespassers known occupiers liability. Comparative contributory negligence if victim contributed causing own harm through negligent irresponsible actions damages reduced eliminated. Contributory negligence English case Butterfield v Forrester 1809 established defense England partial defense United States any fault victim eliminated damages viewed unnecessarily harsh therefore amended comparative negligence system many states as 2007 contributory negligence exists few states North Carolina Maryland. Comparative negligence victim damages reduced according degree fault criticized allowing plaintiff recklessly 95% negligent recover 5% damages economists further criticized encouraging precaution calculus negligence response many states now have 50% rule plaintiff recovers nothing plaintiff more than 50% responsible.
Common questions
When did the word tort first appear in legal writing?
The word tort first appeared in legal writing during the 1580s to describe a civil wrong distinct from breach of contract.
What is the definition of a tortfeasor and their liability?
A person who commits such an act is called a tortfeasor, and their actions result in legal liability for causing loss or harm to another party. Tort law aims to compensate individuals who suffer harm as a result of the actions of others rather than punishing them like criminal law does.
Which case established the modern tort of negligence in England?
The later Scottish case of Donoghue v Stevenson [1932] AC 562 brought England into line with the United States establishing the tort of negligence. In this case Mrs. Donoghue drank from an opaque bottle containing a decomposed snail claiming it made her ill.
How does Indian tort law handle constitutional rights infringements?
Indian tort law uniquely includes remedies constitutional torts actions government infringe rights enshrined Constitution system absolute liability businesses engaged hazardous activity outlined rule M. C. Mehta v Union of India. Landmark case Rudul Sah v State of Bihar 1983 4 SCC 141 illegal detention served role administrative courts many civil law jurisdictions much function constitutional review other jurisdictions functioning branch administrative law rather private law.
What are the three principal defenses to tortious liability in common law jurisdictions?
Three principal defenses tortious liability common law jurisdictions include consent warning victim cannot hold another liable if victim implicitly explicitly consented engage risky activity frequently summarized maxim volenti non fit injuria Latin to willing person no injury done no injury done person consents. Comparative contributory negligence if victim contributed causing own harm through negligent irresponsible actions damages reduced eliminated. Contributory negligence English case Butterfield v Forrester 1809 established defense England partial defense United States any fault victim eliminated damages viewed unnecessarily harsh therefore amended comparative negligence system many states as 2007 contributory negligence exists few states North Carolina Maryland.