1. What is a tort?

Introduction to the Law of Torts

Social Conflict and the Law: In any society, people interact in countless ways every day. These interactions inevitably produce conflicts. As society grows more complex, the potential for harm and disputes increases. The law addresses these conflicts through two main branches: criminal law and civil law.

Criminal law deals with conduct that is considered so dangerous or harmful to the public that the state prohibits it entirely. Wrongdoers face criminal prosecution and punishment such as fines or imprisonment. Civil law, on the other hand, steps in when an individual is harmed by another member of society. It allows the victim to seek a civil remedy, such as financial compensation or a court order stopping the conduct.

Etymology and Meaning: The word 'tort' comes from the Latin term tortum, which means 'twisted' or 'crooked'. Over time, it came to mean a wrong. In everyday French, the phrase j'ai tort simply means 'I am wrong'. In English common law, however, the word has a specific legal meaning: a civil wrong for which the law provides a remedy.

Defining a Tort: Legal writers have found it notoriously difficult to produce a single, complete definition of a tort. Professor Winfield defined tortious liability as arising from a breach of a duty primarily fixed by law. This duty is owed to persons generally, and its breach is redressable through an action for unliquidated damages.

Sir John Salmond offered a different formulation. He defined a tort as a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively a breach of contract, a breach of trust, or any other equitable obligation.

The Aim of Tort Law: The primary aim of tort law is to compensate individuals who suffer injury or loss because of the wrongful acts of others. The rules of tort determine when the courts will grant relief and when they will not. While the standard remedy is an award of damages (monetary compensation), the court may also grant an injunction, which is an order directing the defendant to do or refrain from doing a specific act.

Distinguishing Tort from Other Legal Concepts

Tort and Crime: A crime is a public wrong committed against society as a whole. The state prosecutes the offender through the police and public prosecutors, seeking to punish the wrongdoer through imprisonment or a fine. In contrast, a tort is a private civil wrong committed against an individual. The injured person brings the action in their own name, seeking compensation rather than punishment.

The standard of proof also differs fundamentally. In a criminal prosecution, the state must prove the defendant's guilt beyond a reasonable doubt. In a tort action, the claimant only needs to prove liability on the balance of probabilities. Because of this lower standard, it is generally easier to succeed in a tort claim than in a criminal prosecution.

Despite these differences, a single act can be both a tort and a crime. Offences such as assault, battery, and false imprisonment constitute both civil and criminal wrongs. In such situations, criminal and civil proceedings run concurrently and independently of each other. The wrongdoer may be punished by the criminal courts and ordered by a civil court to pay compensation to the victim.

At common law, this overlap was subject to the procedural rule in Smith v Selwyn. Under that rule, if the wrongful act amounted to a felony, the claimant could not bring a civil action in tort against the defendant until the defendant had been criminally prosecuted, or until a reasonable excuse for the failure to prosecute was shown.

Tort and Contract: The key distinction between tort and contract lies in how the legal duty arises. In contract, duties are created by the parties themselves through agreement. In tort, duties are fixed by the general law, regardless of any agreement between the parties, and are owed to persons generally.

Tort and Trust: Tort and breach of trust have different historical roots and legal consequences. Tort is a common law concept, whereas a trust is an equitable creation unknown to the early common law. A trust arises when a trustee holds property for the benefit of a beneficiary; a breach occurs when the trustee deals with that property unlawfully.

The remedies also differ. A claim for breach of trust is generally for liquidated damages, because the court restores the specific value lost to the trust estate. In contrast, a claim in tort is for unliquidated damages, meaning the court exercises its discretion to calculate the appropriate amount of compensation.

Harm and Legal Injury

Damnum Sine Injuria: The Latin maxim damnum sine injuria means 'damage without legal injury'. It is a fundamental principle that suffering harm or financial loss does not, by itself, give rise to an action in tort. There must also be a violation of a right recognised by law.

If a defendant's act is completely lawful, no claim in tort can succeed, regardless of how much damage the claimant has suffered. The court must decide what counts as a legal injury. Ordinary commercial competition or acts done out of necessity to prevent a greater evil frequently inflict loss on others, but such harm is part of ordinary life and is not legally actionable.

Injuria Sine Damno: The opposite maxim, injuria sine damno (or injuria sine damnum), means 'legal injury without damage'. This occurs where the claimant's legal rights have been violated, but the claimant has suffered no actual physical or financial harm.

Certain torts are actionable per se, meaning they are actionable in themselves without proof of actual damage. For example, in trespass to land or trespass to the person, the claimant is entitled to a legal remedy simply by proving that the wrongful interference occurred, even if it caused no tangible loss.

The Historical Forms of Action

Trespass and Case: The modern law of tort developed in the English King's Courts from the 13th century onward. Historically, every claimant had to begin their legal action by selecting a specific royal writ. Tort claims fell into two broad categories: the writ of trespass and the action on the case (or trespass on the case).

The writ of trespass applied strictly to direct, forcible, and immediate injuries to the claimant's person, land, or goods. For example, if a defendant threw a log into the road and it struck a passer-by directly, the appropriate writ was trespass. The action on the case covered indirect, consequential, or non-forcible injuries. If the defendant left the log on the road and a passer-by later tripped over it in the dark, the harm was indirect and required an action on the case.

Modern Practice: Before the procedural reforms of 1852, choosing the wrong writ was fatal to a claimant's suit; the action would simply be dismissed. Today, these rigid forms of action no longer exist. A claimant only needs to set out the material facts in a statement of claim and establish that a recognised tort has been committed. Nonetheless, the historical distinction remains influential: modern trespass is still concerned with direct interference, while torts like nuisance govern indirect harm.

Mental Elements in Tort

Intention and Negligence: Most torts require the claimant to prove a specific state of mind on the part of the defendant, typically intention or negligence. An act is intentional when the defendant acts with full awareness of the consequences and deliberately sets out to produce them.

Courts cannot read a defendant's mind directly. Instead, judges infer intention from the defendant's words, conduct, and surrounding circumstances. The law applies the presumption that a person intends the natural and probable consequences of their acts. By contrast, a defendant is negligent when they do not desire the harmful outcome, but act carelessly or indifferently toward the risks created by their conduct.

Strict Liability: In certain torts, liability is imposed regardless of whether the defendant acted intentionally or negligently. These are known as torts of strict liability. Common examples include liability for damage done by dangerous animals and liability under the rule in Rylands v Fletcher.

Motive and Malice: Motive refers to the underlying purpose or reason why a person acts. As a general rule, motive is irrelevant to tortious liability. If an act is inherently unlawful, a good motive will not excuse it. For instance, if a brother locks his adult sister in a room to protect her from a man he dislikes, he is liable for false imprisonment regardless of his good intentions.

Conversely, if an act is lawful, an evil or spiteful motive will not make it actionable in tort. This principle was established in Bradford Corporation v Pickles. In that case, the defendant deliberately diverted water percolating beneath his own land to spite a municipal corporation after it refused to buy his land at an inflated price. The House of Lords held that the defendant had committed no tort, because he had a lawful right to use the water on his land, and his malicious motive could not turn a lawful act into an unlawful one.

Classification of Torts

Protected Interests: Torts are traditionally classified according to the specific legal interests they protect. These fall into several main categories.

Personal Interests: These torts protect an individual's bodily integrity, personal safety, and physical liberty. The principal actions are the three forms of trespass to the person: assault, battery, and false imprisonment.

Property Interests: These torts protect a person's rights over real property (land) and personal property (goods or chattels). They guard against unauthorized interference, damage, or dispossession, and include trespass to land, nuisance, and trespass to chattels.

Reputational Interests: These torts safeguard an individual's standing, character, and esteem in the eyes of society. The law of defamation provides remedies through two distinct actions: libel (defamation in permanent form) and slander (defamation in transient form).

Economic Interests: These torts protect commercial, trade, and financial interests against unfair or unlawful interference. Key examples include the tort of deceit, which redresses fraudulent misrepresentations, and the tort of passing off, which prevents traders from misrepresenting their goods or business as those of another.