Part of the common law series
Tort law
(Outline)
Trespass to the person
Assault Battery False imprisonment Intentional infliction of emotional distress
Property torts
Trespass land chattels Conversion
Dignitary torts
Appropriation Defamation False light Slander Libel Invasion of privacy Intrusion on Seclusion Breach of confidence Abuse of process Malicious prosecution Sexual torts Alienation of affections Criminal conversation Seduction Breach of promise
Negligent torts
Negligent infliction of emotional distress Employment-related Entrustment Malpractice legal medical
Principles of negligence
Duty of care Trespassers Licensees Invitees Standard of care Reasonable person Proximate cause Res ipsa loquitur Restitutio ad integrum Rescue doctrine Duty to rescue Comparative responsibility Contributory negligence Attractive nuisance
Strict and absolute liability
Product liability Ultrahazardous activity M. C. Mehta v. Union of India Deep pockets
Nuisance
Public nuisance Rylands v Fletcher
Economic torts
Conspiracy Restraint of trade Insurance bad faith (American law) Fraud Tortious interference
Defenses
Assumption of risk Consent Necessity Statute of limitations Self-defense Defense of others Defense of property Shopkeeper's privilege Neutral reportage
Liability
Intentional torts Last clear chance Eggshell skull Vicarious liability Respondeat superior Volenti non fit injuria Ex turpi causa non oritur actio Joint and several liability Market share liability Transferred intent
Remedies
Damages Punitive Special Incidental Injunction Tracing Detinue Replevin Trover
Other topics in tort law
Tort reform Non-economic damages caps Quasi-tort Delict (civil law equivalent) Conflict of tort laws Private attorney general Class action
By jurisdiction
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Other common law areas
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A tort, in common law jurisdiction, is a civil wrong^[1] (other than breach of contract) that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial loss, injury, invasion of privacy, and numerous other harms. The word '"tort' stems from Old French via the Norman Conquest and Latin via the Roman Empire.^[2]

Tort law involves claims in an action seeking to obtain a private civil remedy, typically monetary damages. Tort claims may be compared to criminal law, which deals with criminal wrongs that are punishable by the state. A wrongful act, such as an assault and battery, may result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which also provides civil remedies after breach of a duty that arises from a contract; but whereas the contractual obligation is one agreed to by the parties, obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.^{[citation needed]} In both contract and tort, successful claimants must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty.^[a][b]

Terminology[edit]

The person who commits the act is called a tortfeasor. Although crimes may be torts, the cause of legal action in civil torts is not necessarily the result of criminal action; the harm in civil torts may be due to negligence, which does not amount to criminal negligence. The victim of the harm can recover their loss as damages in a lawsuit. To prevail, the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the legally recognizable cause of the harm. The equivalent of tort in civil law jurisdictions is "delict". Moreover, Tort law differs from Criminal law, whilst both contain punitive elements, Tort law is known to be more vindicatory and 'compensatory'^[2] by nature. 'The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another.'^[3]

Legal injuries are not limited to physical injuries and may include emotional, economic,^[c] or reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise such varied topics as automobile accidents, false imprisonment, defamation, product liability, copyright infringement, and environmental pollution (toxic torts).

Compared to criminal cases, tort lawsuits have a lower burden of proof, namely "preponderance of evidence",^[d] rather than beyond a reasonable doubt. Sometimes a claimant may prevail in a tort case even if the defendant who allegedly caused harm were acquitted in an earlier criminal trial. For example, O. J. Simpson was acquitted in criminal court of murder but later found liable for the tort of wrongful death.

Both tort law and criminal law may impose liability where there is:

• intentional action
• reckless behaviour
• carelessness
• product liability (without negligence) in the US and the EU
• "innocence" (or blameless inadvertence) provided there is strict liability
• Battery
• Assault
• Trespass

Both laws also deter certain types of undesirable behaviour through liability. However, in Criminal law the term 'guilty' is used whereas in Tort law this is not the case and 'liable' is used instead.^[2]

History[edit]

Roman law contained provisions for torts in the form of delict, which later influenced the civil law jurisdictions in Continental Europe, but a distinctive body of law arose in the common law word traced to English tort law. The word 'tort' was first used in a legal context in the 1580s,^[e] although different words were used for similar concepts prior to this time.

Medieval period[edit]

Torts and crimes at common law originate in the Germanic system of compensatory fines for wrongs (OE unriht), with no clear distinction between crimes and other wrongs.^[5] In Anglo-Saxon law, most wrongs required payment in money or in kind (bōt, literally 'remedy') to the wronged person or their clan.^[6] Wīte (literally 'blame, fault') was paid to the king or holder of a court for disturbances of public order. Weregild, which was a murder fine based on a victim's worth, was intended to prevent blood feuds.^[5] Some wrongs in later law codes were botleas 'without remedy' (e.g. theft, open murder, arson, treason against one's lord), that is, unable to be compensated, and those convicted of a botleas crime were at the king's mercy.^[7] Items or creatures which caused death were also destroyed as deodands. Assessing intention was a matter for the court, but Alfred the Great's Doom Book did distinguish unintentional injuries from intentional ones, whereas culpability depended on status, age, and gender.

After the Norman Conquest, fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown.^[8] The petty assizes (i.e. of novel disseisin, of mort d'ancestor, and of darrein presentment) were established in 1166 as a remedy for interference with possession of freehold land. The trespass action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. The plea arose in local courts for slander, breach of contract, or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made de cursu (available by right, not fee); however, it was restricted to interference with land and forcible breaches of the king's peace. It may have arisen either out of the "appeal of felony", or assize of novel disseisin, or replevin. Later, after the Statute of Westminster 1285, in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force.^[5] As its scope increased, it became simply "action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case.^[5]

In 1401, the English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle.^[5] Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for common carrier, which arose around 1400, was also emphasized in the medieval period.^[5] Unintentional injuries were relatively infrequent in the medieval period. As transportation improved and carriages became popular in the 18th and 19th centuries, however, collisions and carelessness became more prominent in court records.^[5] In general, scholars of England such as William Blackstone took a hostile view to litigation, and rules against champerty and maintenance and vexatious litigation existed.^[9] The restriction on assignment of a cause of action is a related rule based on public policy.

English influence[edit]

The right of victims to receive redress was regarded by later English scholars as one of the rights of Englishmen.^[10] Blackstone's Commentaries on the Laws of England, which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word tort in a few places.^[10]

United States influence[edit]

United States tort law was influenced by English law and Blackstone's Commentaries, with several state constitutions specifically providing for redress for torts^[10] in addition to reception statutes which adopted English law. However, tort law was viewed^[who?] as relatively undeveloped by the mid-19th century; the first American treatise on torts was published in the 1860s but the subject became particularly established when Oliver Wendell Holmes, Jr wrote on the subject in the 1880s.^[10] Holmes' 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",^[11] although Holmes' summary of the history of torts has been critically reviewed.^[12] The 1928 US case of Palsgraf v. Long Island Railroad Co. heavily influenced the British judges in the 1932 House of Lords case of Donoghue v Stevenson.

Modern development[edit]

The law of torts for various jurisdictions has developed independently. In the case of the United States, a survey of trial lawyers pointed to several modern developments, including strict liability for products based on Greenman v. Yuba Power Products, the limitation of various immunities (e.g. sovereign immunity, charitable immunity), 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.^[13]

Modern torts are heavily affected by insurance and insurance law, as most cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with the insurance policy, a deep pocket limit, setting a ceiling on the possible payment.^[14]

Comparative law[edit]

In the international comparison of modern tort law, common law jurisdictions based upon English tort law have foundational differences from civil law jurisdiction, which may be based on the Roman concept of delict. Even among common law countries, however, significant differences exist. For example, in England legal fees of the winner are paid by the loser (the English rule versus the American rule of attorney fees). Common law systems include United States tort law, Australian tort law, Canadian tort law, Indian tort law, and the tort law of a variety of jurisdictions in Asia and Africa. The Scots law of delict, while based on a mixture of local precedent and Roman law, has both influenced and been influenced by English common law, with the Scottish case Donoghue v Stevenson forming the basis for product liability in the majority of jurisdictions within the Commonwealth of Nations. The Jewish law of rabbinic damages in Israel is another example although tort in Israeli law is largely based on English law, having been enacted by British Mandate of Palestine authorities in 1944 and taking effect in 1947. There is a more apparent split between the Commonwealth countries and the United States.^[15]

The United States has been perceived as particularly prone to filing tort lawsuits even relative to other common law countries, although this perception has been criticized and debated.^[16] As of 1987, class actions were relatively uncommon outside of the United States.^[16] As of 1987, English law was less generous to the plaintiff in the following ways: contingent fee arrangements were restricted, English judges tried more decisions and set damages rather than juries, wrongful death lawsuits were relatively restricted, punitive damages were relatively unavailable, the collateral source rule was restricted, and strict liability, such as for product liability, was relatively unavailable.^[16] England's welfare state, such as free healthcare through National Health Service, may limit lawsuits.^[16] On the other hand, as of 1987 England had no workers compensation system and lawsuits due to workplace injuries were relatively common and facilitated by trade unions, whereas in the United States the system of workers' compensation insurance provides for compensation an employee who is injured at work even if the employee was at fault for the injury, but otherwise prohibits most lawsuits against the employer (although lawsuits against third parties who are responsible for the injury, such as the manufacturer of a defective ladder on which the employee was injured) are permitted.^[16] The United States also has faced a rise in no-fault insurance for automobile liability in several states.^[16] In England, ombudsmen may also take cases which could alternatively become tort lawsuits.^[16]

While Indian tort law is generally derived from English law, there are certain differences between the two systems. 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 as outlined in the rule in M. C. Mehta v. Union of India. Similar to other common law jurisdictions, conduct which gives rise to a cause of action under tort law is additionally criminalised by the Indian Penal Code, which was originally enacted in 1860.^[17] As a result of the influence of its relatively early codification of criminal law, the torts of assault, battery, and false imprisonment are interpreted by Indian courts and the courts of jurisdictions that were formerly part of the British Indian Empire (e.g. Pakistan, Bangladesh) and British colonies in South East Asia which adopted the Indian Penal Code (i.e. Singapore, Malaysia, and Brunei) with reference to analogous crimes outlined in the code. For instance, assault is interpreted in the context of s.351 per which the following criteria constitute assault:^[18]

• Making of any gesture or preparation by a person in the presence of another.
• Intention or knowledge of likelihood that such gesture or preparation will cause the person present to apprehend that the person making it is about to use criminal force on him.

Similarly, battery is interpreted in the context of criminal force as outlined in s.350.^[19][f] An area of tort unique to India is the constitutional tort, a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle.^[21] In practice, constitutional torts in India serve the role served by administrative courts in many civil law jurisdictions and much of the function of constitutional review in other jurisdictions, thereby functioning as a branch of administrative law rather than private law. Rather than developing principles of administrative fairness as a distinct branch of law as other common law jurisdictions have, Indian courts have thus extended tort law as it applies between private parties to address unlawful administrative and legislative action.

Absolute liability, under the rule in M. C. Mehta v. Union of India, in Indian tort law is a unique outgrowth of the doctrine of strict liability for ultrahazardous activities. Under the precedent established in the English case of Rylands v Fletcher, upon which the Indian doctrine of absolute liability is based, anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own purposes anything likely to cause mischief if it escapes is answerable for all direct damage thereby caused.^[22] While, in England and many other common law jurisdictions, this precedent is used to impose strict liability on certain areas of nuisance law^[23] and is strictly "a remedy for damage to land or interests in land" under which "damages for personal injuries are not recoverable",^[24] Indian courts have developed this rule into a distinct principle 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.^[25] This differs greatly from the English approach as it includes all kinds of resulting liability, rather than being limited to damage to land.^[25]

Within Canada's common law provinces, there is currently no consistent approach to the tort of invasion of privacy. Four provinces (British Columbia,^[26] Manitoba,^[27] Newfoundland^[28] and Saskatchewan^[29]) have created a statutory tort. Ontario has recognised the existence of the tort of "intrusion upon seclusion",^[30] which has also been held to exist under tort law in the United States. British Columbia, on the other hand, has held that the tort does not exist in that province under the common law.^[31]

Like the United Kingdom and British Columbia,^[32] but unlike Ontario^[33] and most jurisdictions in the United States, Indian tort law does not traditionally recognise a common law tort of invasion of privacy or intrusion on seclusion.^[34] Nevertheless, there is a shift in jurisprudence toward recognising breech of confidentiality as an actionable civil wrong.^[35] Proponents of protection for privacy under Indian tort law argue that “the right to privacy is implicit” in Article 21 of the Constitution of India, which guarantees protections for personal liberties. ^[34] Despite the lack of a tort addressing violations of privacy by private individuals, the Supreme Court recognised privacy as a constitutional right in 2017. Similarly, neither intentional infliction of emotional distress (IIED) nor negligent infliction of emotional distress (NIED) is recognised as a tort in Indian jurisprudence.^[36] While 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 recognise only recognised psychiatric injuries as grounds for compensation.^[36] Indian courts, while recognising the infliction of emotional distress regardless of intention as an actionable wrong in matrimonial disputes,^[37] typically follow the English approach, although case law from both the United Kingdom and the North America is frequently employed by judges ruling on cases in which damages for mental distress are sought.^[36]

When comparing Australia and the United States, Australia's tort law is similarly state law; however, there is a federal common law for torts unlike the United States. The influence of United States law on Australia has been limited. However, United States law may have influenced Australia's development of strict liability claims for products indirectly through legislation affected by European Union, and in the 1990s class actions were introduced in Australia.^[15] Australia has universal healthcare and 'welfare state' systems which relieve injured persons (and others) from having to pay their medical expenses and also limit lawsuits.^[15]

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.^[15] The rationale underlying New Zealand's elimination of personal injury torts was securing equality of treatment for victims regardless of whether or the extent to which they or any other party was at fault.^[38] This was the basis for much of Professor Patrick Atiyah's scholarship as articulated in Accidents, Compensation and the Law (1970). Originally his proposal was the gradual abolition of tort actions, and its replacement with schemes like those for industrial injuries to cover for all illness, disability and disease, whether caused by people or nature. In addition to the development of the Accident Compensation Corporation to eliminate personal injury lawsuits, the tort system for medical malpractice was scrapped in New Zealand, both following recommendations from the Royal Commission in 1967 for 'no fault' compensation scheme (see The Woodhouse Report).^[38]

Conflict of laws[edit]

In certain instances, different jurisdictions' law may apply to a tort, in which case rules have developed for which law to apply. In common law jurisdictions, the traditional approach to determine which jurisdiction's tort law is applicable is the proper law test. When the jurisdiction is in dispute, one or more state laws will be relevant to the decision-making process. If the laws are the same, this will cause no problems, but if there are substantive differences, the choice of which law to apply will produce a different judgment. Each state therefore produces a set of rules to guide the choice of law, and one of the most significant rules is that the law to be applied in any given situation will be the proper law. This is the law which seems to have the closest and most real connection to the facts of the case, and so has the best claim to be applied. The general rule is that the proper law is the primary system of law which governs most aspects of the factual situation giving rise to the dispute. This does not imply that all the aspects of the factual circumstances are necessarily governed by the same system of law, but there is a strong presumption that this will be the case (see characterisation). Traditionally, common law jurisdictions such as England required "double actionability" for torts, effectively requiring the conduct to be considered tortious both in England and in the jurisdiction whose law is to apply under the proper law rule.

Over time, the proper law test has been refined or replaced in many common law jurisdictions either with reference to all instances of conflict of laws or specifically in the case of tort law. In English law, with the exception of defamation which continues to apply the proper law test, s10 Private International Law (Miscellaneous Provisions) Act 1995 abolishes the "double actionability" test, and s11 applies the lex loci delicti rule subject to an exception under s12 derived from Boys v Chaplin [1971] AC 356 and Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190. Thus, it is no longer necessary for the case to be based on a tort actionable in England. The English courts must apply wider international tests and respect any remedies available under the "Applicable Law" or lex causae including any rules on who may claim (e.g. whether a personal representative may claim for a fatal accident) and who the relevant defendant may be (i.e. the English court would have to apply the applicable law's rules on vicarious liability or the identity of an "occupier" of land). The first step is for the court to decide where the tort occurred, which may be complicated if relevant events took place in more than one state. s11(2) distinguishes between:

• actions for personal injuries: it is the law of the place where the individual sustained the injury;
• damage to property: it is the law of the place where the property was damaged;
• in any other case, it is the law of the place in which the most significant element or elements occurred.

In exceptional circumstances, the lex loci delicti rule is displaced in favour of another law, if the "factors relating to the parties" or "any of the events which constitute the tort" show that this other law will be substantially more appropriate.

Within the European Union, there have been efforts to harmonise conflict of tort laws rules between member states. Under Article 3 of the proposed Rome II Regulation on the Law Applicable to Non-Contractual Obligations (22 July 2003), there would be a general presumption that the lex loci delicti will apply subject to either: an exception in Paragraph 2 for the application of the law to any common habitual residence between the parties, or an exception in Paragraph 3 for cases in which "the non-contractual obligation is manifestly more closely connected with another country. . ." the so-called proximity criterion. In effect, where other specific rules of the regulation are not applied, these general rules replicate the effect of the English rules outlined above. In product liability cases, Article 4 selects the law of the injured party's habitual residence if the product was marketed there with the consent of the defendant. The rationale is that if a defendant knows of, and is benefiting from, sales in the plaintiff's state, the choice of that state's law is reasonable. Article 6 specifies the lex fori for actions arising out of breach of privacy or defamation, a rule that may increase the risk of forum shopping. Whether the plaintiff has any right of reply in a defamation case will be determined under the law of the state where the broadcaster or publisher is established. In cases where contract and tort issues overlap, Article 9 states that the same law should govern both sets of issues, thus applying contractual choice of law clauses to related tort litigation.

In the United States, where each state constitutes a distinct jurisdiction for the purposes of tort law, different jurisdictions take different approaches to conflict of laws and rules regarding conflict of tort laws apply equally to conflicts between the tort laws of two American states and conflicts between an American state and a foreign jurisdiction. Until the 20th century, traditional choice of law rules were based on the principle that legal rights vest automatically at legally significant and ascertainable times and places. For example, a dispute regarding property would be decided by the law of the place the property was located.^[39] Disputes in tort would be decided by the place where the injury occurred.^[40] During the first half of the 20th century, the traditional conflict of laws approach came under criticism from some members of the American legal community who saw it as rigid and arbitrary; the traditional method sometimes forced application of the laws of a state with no connection to either party, except that a tort or contract claim arose between the parties in that state.^[41] This period of intellectual ferment (which coincided with the rise of the legal realism movement) introduced a number of innovative approaches to American choice of laws jurisprudence:^[42]

• Renvoi: Under this approach, courts look for a provision in the law of the choice of law state that permits the court to use the lex fori, i.e. law of the forum state.
• Significant contacts test: This test evaluates the contacts between the states and each party to the case, and determines which state has the most significant contacts with the litigation as a whole.
• Seat of the relationship test: This test specifically examines the relationship between the parties to the lawsuit, and uses the law of the state in which the relationship between the parties was most significant.
• Balance of interests test: This test examines the interests of the states themselves, and the reasons for which the laws in question were passed. It is the brainchild of University of Chicago law professor Brainerd Currie, who outlined the doctrine in a series of articles from the 1950s and 60s. Under this form of analysis, the court must determine whether any conflict between the laws of the states is a true conflict, a false conflict, or an unprovided-for case. A true conflict occurs when one state offers a protection to a particular party that another state does not, and the court of the state that offers no such protection is asked to apply the law of the state offering the protection. In such a case, if the interests are balanced, the law of the forum will prevail. A false or apparent conflict occurs when the state offering the protection has no actual interest in the endorsement of that protection against the particular parties to the case. In this case, since neither party is from the forum state, it has no interest in the application of the law to these persons. An unprovided-for case is one in which each party is seeking to apply the law of the other state. In such a case, the law of the forum will prevail.
• Comparative impairment test: This test asks which state's policies would suffer more if their law was not applied. This is similar to interest analysis, in that the interests of the state are taken into account - however, this test does not look to see which state benefits more from the application of its laws, but rather for situations in which the other state's interests will actually be harmed by the application of the laws of the forum state.
• Better rule test: The better rule test presupposes that, between the laws presented by the two or more states in which the action arose, there is one set of laws which is empirically better, and which is therefore more meritorious of application by the forum court. Use of the "better rule" test, like renvoi, is frowned upon because it appears to be little more than a gimmick to allow a court to apply the law of its own state.

Categories[edit]

Torts may be categorized in several ways, with a particularly common division between negligent and intentional torts. Quasi-torts are unusual tort actions. Particularly in the United States, "collateral tort" is used to refer to torts in labour law such as intentional infliction of emotional distress ("outrage");^[43] or wrongful dismissal; these evolving causes of action are debated and overlap with contract law or other legal areas to some degree.^[44]

The most common action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests or noneconomic interests such as the tort of negligent infliction of emotional distress in the United States. Negligence actions include claims coming primarily from car accidents and personal injury accidents of many kinds, including clinical negligence, worker's negligence and so forth. Product liability cases, such as those involving warranties, may also be considered negligence actions or, particularly in the United States, may apply regardless of negligence or intention through strict liability.

In order to win an action for negligence, a plaintiff must prove: duty, breach of duty, causation, scope of liability, and damages. Further, a defendant may assert various defenses to a plaintiff’s case, including comparative fault and assumption of risk.

Intentional torts include, among others, certain torts arising from the occupation or use of land. The tort of nuisance, for example, involves strict liability for a neighbor who interferes with another's enjoyment of his real property. Trespass allows owners to sue for entrances by a person (or his structure, such as an overhanging building) on their land. Several intentional torts do not involve land. Examples include false imprisonment, the tort of unlawfully arresting or detaining someone, and defamation (in some jurisdictions split into libel and slander), where false information is broadcast and damages the plaintiff's reputation. Other intentional torts include Battery, Assault, Trespass to Chattels, Intentional Infliction of Emotional Distress, Misrepresentation, and Alienation of Affections.

In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, workers' compensation laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside the traditional common law torts. These are loosely grouped into quasi-torts or liability torts.^[16]

Negligence[edit]

Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person. Although credited as appearing in the United States in Brown v. Kendall, the later Scottish case of Donoghue v Stevenson [1932] AC 562, followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions.^[45] In Donoghue, Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence. The elements in determining the liability for negligence are:^{[citation needed]}

• The plaintiff was owed a duty of care through a special relationship (e.g. doctor-patient) or some other principle
• There was a dereliction or breach of that duty
• The tortfeasor directly caused the injury [but for the defendant's actions, the plaintiff would not have suffered an injury].
• The plaintiff suffered damage as a result of that breach
• The damage was not too remote; there was proximate cause to show the breach caused the damage

In certain cases, negligence can be assumed under the doctrine of res ipsa loquitur (Latin for "the thing itself speaks"); particularly in the United States, a related concept is negligence per se.^[46]

For example, in the business realm, the auditor has a duty of care to the company they are auditing – that the documents created are a true and reliable representation of the company's financial position. However, as per Esanda Finance Corporation Ltd v. Peat Marwick Hungerfords, such auditors do NOT provide a duty of care to third parties who rely on their reports. An exception is where the auditor provides the third party with a privity letter, explicitly stating the third party can rely on the report for a specific purpose. In such cases, the privity letter establishes a duty of care.^[47]

The case Chapman v Hearse added to the precedent of negligence where in previous cases reasonable foreseeability was applied narrowly to include all predictable actions, Chapman v Hearse extended this to include all damages of the same nature which could be reasonably foreseen.^[48]

Proximate cause[edit]

Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.^[49][50] The defense may argue that there was a prior cause or a superseding intervening cause. A common situation where a prior cause becomes an issue is the personal injury car accident, where the person re-injures an old injury. For example, someone who has a bad back is injured in the back in a car accident. Years later, he is still in pain. He must prove the pain is caused by the car accident, and not the natural progression of the previous problem with the back. A superseding intervening cause happens shortly after the injury. For example, if, after the accident, the doctor who works on you commits malpractice and injures you further, the defense can argue that it was not the accident, but the incompetent doctor who caused your injury. [3]

Intentional torts[edit]

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories:

• Torts against the person include assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud, although the latter is also an economic tort.
• Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognized include trespass to land, trespass to chattels (personal property), and conversion.

An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy the intent requirement.^[51] Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.

Statutory torts[edit]

A statutory tort is like any other, in that it imposes duties on private or public parties, however they are created by the legislature, not the courts. For example, the European Union's Product Liability Directive imposes strict liability for defective products that harm people; such strict liability is not uncommon although not necessarily statutory.

As another example, in England common law liability of a landowner to guests or trespassers was replaced by the Occupiers' Liability Act 1957; a similar situation occurred in the U.S. State of California in which a judicial common law rule established in Rowland v. Christian was amended through a 1985 statute.^[52] Statutory torts also spread across workplace health and safety laws and health and safety in food. In some cases federal or state statutes may preempt tort actions, which is particularly discussed in terms of the U.S. FDA Preemption;^[53] although actions in the United States for medical devices are preempted due to Riegel v. Medtronic, Inc. (2008), actions for medical drugs are not due to Wyeth v. Levine (2009).

Nuisance[edit]

"Nuisance" is traditionally used to describe an activity which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private nuisance) or the general public (public nuisance). The claimant can sue for most acts that interfere with their use and enjoyment of their land. In English law, whether activity was an illegal nuisance depended upon the area and whether the activity was "for the benefit of the commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet.^[54] The case Jones v Powell (1629) provides an early example, in which a person's professional papers were damaged by the vapors of a neighboring brewery. Although the outcome of this case is unclear,^[54] Whitelocke of the Court of the King's Bench is recorded as saying that since the water supply in area was already contaminated, the nuisance was not actionable as it is "better that they should be spoiled than that the commonwealth stand in need of good liquor".^{[citation needed]}

In English law, a related category of tort liability was created in the case of Rylands v Fletcher (1868): strict liability was established for a dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. In Cambridge Water Co Ltd v Eastern Counties Leather plc (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs.^[55] The Rylands rule remains in use in England and Wales. In Australian law, it has been merged into negligence.^[56]

Defamation[edit]

Defamation is tarnishing the reputation of someone; it has two varieties, slander and libel. Slander is spoken defamation and libel is printed or broadcast defamation. The two otherwise share the same features: making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the First Amendment to the Constitution of the United States, or Article 10 of the European Convention of Human Rights. Related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.

Business torts[edit]

Business torts (i.e., economic torts) typically involve commercial transactions, and include tortious interference with trade or contract, fraud, injurious falsehood, and negligent misrepresentation. Negligent misrepresentation torts are distinct from contractual cases involving misrepresentation in that there is no privity of contract; these torts are likely to involve pure economic loss which has been less-commonly recoverable in tort. One criterion for determining whether economic loss is recoverable is the "foreseeability" doctrine.^[57] The economic loss rule is highly confusing and inconsistently applied^[58] and began in 1965 from a California case involving strict liability for product defects; in 1986, the U.S. Supreme Court adopted the doctrine in East River S.S. Corp. v. Transamerica Deleval, Inc.^[59] In 2010, the supreme court of the U.S. state of Washington replaced the economic loss doctrine with an "independent duty doctrine".^[60]

Economic antitrust torts have been somewhat submerged by modern competition law. However, in the United States, private parties are permitted in certain circumstances to sue for anticompetitive practices, including under federal or state statutes or on the basis of common law tortious interference, which may be based upon the Restatement (Second) of Torts §766.^[61] Federal laws include the Sherman Antitrust Act of 1890 followed by the Clayton Antitrust Act which restrict cartels and through Federal Trade Commission regulate mergers and acquisitions. In the European Union, articles 101 and 102 of the Treaty on the Functioning of the European Union apply but allowing private actions to enforce antitrust laws is under discussion.^{[citation needed]}

Negligent misrepresentation as tort where no contractual privity exists was disallowed in England by Derry v Peek [1889]; however, this position was overturned in Hedley Byrne v Heller in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant.^[62] United States courts and scholars "paid lip-service" to Derry; however, scholars such as William Prosser argued that it was misinterpreted by English courts.^[62] The case of Ultramares Corporation v. Touche (1932) limited the liability of an auditor to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s.^[62] The Restatement (Second) of Torts expanded liability to "foreseeable" users rather than specifically identified "foreseen" users of the information, dramatically expanding liability and affecting professionals such as accountants, architects, attorneys, and surveyors.^[62] As of 1989, most U.S. jurisdictions follow either the Ultramares approach or the Restatement approach.^[62]

The tort of deceit for inducement into a contract is a tort in English law, but in practice has been replaced by actions under Misrepresentation Act 1967.^[63] In the United States, similar torts existed but have become superseded to some degree by contract law and the pure economic loss rule.^[64] Historically (and to some degree today), fraudulent (but not negligent^[64]) misrepresentation involving damages for economic loss may be awarded under the "benefit-of-the-bargain" rule (damages identical to expectation damages in contracts^[64]) which awards the plaintiff the difference between the value represented and the actual value.^[64] Beginning with Stiles v. White (1846) in Massachusetts, this rule spread across the country as a majority rule with the "out-of-pocket damages" rule as a minority rule.^[64] Although the damages under the "benefit-of-the-bargain" are described as compensatory, the plaintiff is left better off than before the transaction.^[64] Since the economic loss rule would eliminate these benefits if applied strictly, there is an exception to allow the misrepresentation tort if not related to a contract.^[64]

Liability, defenses, and remedies[edit]

Indirect liability may arise due to some involvement, notably through joint and several liability doctrines as well as forms of secondary liability. Liability may arise through enterprise liability. Other concepts include market share liability.

Vicarious liability[edit]

In certain cases, a person might be liable for their employee or child under the law of agency through the doctrine of respondeat superior. For example, if a shop employee spilled cleaning liquid on the supermarket floor and a victim fell and suffered injuries, the plaintiff might be able to sue either the employee or the employer. There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation. Generally, this follows: If you want something done properly, do it yourself; if you get someone else to do it for you, then take the risk of their mistakes.''^[2]

Defenses[edit]

A successful defense absolves the defendant from full or partial liability for damages. Apart from proof that there was no breach of duty, there are three principal defenses to tortious liability.

Consent and warning[edit]

Typically, a victim cannot hold another liable if the victim has implicitly or explicitly consented to engage in a risky activity. This is frequently summarized by the maxim "volenti non-fit injuria" (Latin: "to a willing person, no injury is done" or "no injury is done to a person who consents"). In many cases, those engaging in risky activities will be asked to sign a waiver releasing another party from liability.

For example, spectators to certain sports are assumed to accept a risk of injury, such as a hockey puck or baseball striking a member of the audience. Warnings by the defendant may also provide a defense depending upon the jurisdiction and circumstances. This issue arises, for example, in the duty of care that landowners have for guests or trespasses, known as occupiers' liability.

Comparative or contributory negligence[edit]

If the victim has contributed to causing their own harm through negligent or irresponsible actions, the damages may be reduced or eliminated entirely. The English case Butterfield v. Forrester (1809) established this defense. In England, this "contributory negligence" became a partial defense, but in the United States, any fault by the victim completely eliminated any damages.^[65] This meant that if the plaintiff was 1% at fault, the victim would lose the entire lawsuit.^[65] This was viewed as unnecessarily harsh and therefore amended to a comparative negligence system in many states; as of 2007 contributory negligence exists in only a few states such as North Carolina and Maryland.^[65]

In comparative negligence, the victim's damages are reduced according to the degree of fault. Comparative negligence has been criticized as allowing a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant. Economists have further criticized comparative negligence as not encouraging precaution under the calculus of negligence. In response, many states now have a 50% rule where the plaintiff recovers nothing if the plaintiff is more than 50% responsible.

Illegality[edit]

If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. The legal maxim ex turpi causa non-oritur actio, Latin for "no right of action arises from a despicable cause". Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained but for the property owner's intervention.

Other defenses and immunities[edit]

Historically, immunity has been granted to governments under sovereign immunity and to charitable organizations under charitable immunity, although these have eroded in the United States.^[13]

Various laws limit liability when giving aid to a person in need; liability can arise from a failure to help due to the duty to rescue.

Remedies[edit]

The main remedy against tortious loss is compensation in damages or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defense against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction, such as in the English case Miller v Jackson (1977). This means a command, for something other than money by the court, such as restraining the continuance or threat of harm. Usually injunctions will not impose positive obligations on tortfeasors, but some Australian jurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters.^[66]

Theory and reform[edit]

Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated, and punitive.^[67] British scholar Glanville Williams notes four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.^[68]

From the late 1950s a group of legally oriented economists and economically oriented lawyers known as law and economics scholars emphasized incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. Ronald Coase, a principal proponent, argued in The Problem of Social Cost (1960) that the aim of tort law, when transaction costs are high, should be to reflect as closely as possible the allocation of risk and liability at which private parties arrive when transaction costs are low.^[69]

Since the mid-to-late 20th century, calls for reform of tort law have come from various perspectives. Some calls for reform stress the difficulties encountered by potential claimants. For example, because not all people who have accidents can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery".^[70] Consequently, in New Zealand, the government in the 1960s established a no-fault system of state compensation for accidents. In the 1970s, Australia^[71] and the United Kingdom drew up proposals for similar no-fault schemes^[72] but they were later abandoned.

A wide variety of tort reforms have been implemented or proposed in different jurisdictions, each attempting to address a particular deficiency perceived in the system of tort law. Generally, these can be broken down into two categories: reforms limiting damages recoverable by a plaintiff and procedural reforms limiting the ability of plaintiffs to file lawsuits. A large portion of tort reforms seek to limit the damages a plaintiff can be awarded. The rationale underlying these reforms is that, by limiting the profitability of tort lawsuits to plaintiffs, they will reduce the incentive to file frivolous lawsuits. There are several varieties of reforms to the system of damages:

• Non-economic damages caps place limits on noneconomic damages and collecting lawsuit claim data from malpractice insurance companies and courts in order to assess any connection between malpractice settlements and premium rates.^[73] Such caps can be general or limited to a particular category of cases.^[g]

• Punitive damages caps limit the amount of punitive damages awardable to a plaintiff. In most civil law jurisdictions, punitive damages are unavailable and are considered contrary to public policy since the civil justice system in many countries does not accord defendants the procedural protections present in the criminal justice system thus penalising an individual without allowing them the ordinary procedural protections that are present in a criminal trial. The rationale for restricting punitive damages is that such damages encourage a vindictive, revenge seeking state of mind in the claimant and society more generally. In the UK, Rookes v Barnard^[74] limited the situations in which punitive damages can be won in tort actions to where they are expressly authorised by a statute, where a defendant's action is calculated to make profit, or where an official of the state has acted arbitrarily, oppressively or unconstitutionally. In the United States, though rarely awarded in tort cases, punitive damages are available, and are sometimes quite staggering when awarded.^[h]

• Limits on damages for pain and suffering are another category of tort reform. While tort compensation easily applies to property damage, where the replacement value is a market price (plus interest), but it is difficult to quantify the injuries to a person's body and mind. There is no market for severed legs or sanity of mind, and so there is no price which a court can readily apply in compensation for the wrong. Some courts have developed scales of damages awards, benchmarks for compensation, which relate to the severity of the injury. For instance, in the United Kingdom, the loss of a thumb is compensated at £18,000, for an arm £72,000, for two arms £150,000, and so on,^[77] but while a scale may be consistent, the award itself is arbitrary. Patrick Atiyah has written that one could halve, or double, or triple all the awards and it would still make just as much sense as it does now.^[78]

• Another reform to compensation, in jurisdictions where it is not already the norm, is to implement the English rule whereby the losing party to a case covers the victorious party's legal costs. In Commonwealth countries as well as certain American states, the losing party must pay for the court costs of the winning party.^[79] The English rule Is also a prevailing norm in European civil law jurisdictions.^[80] For example, after authors Michael Baigent and Richard Leigh lost their plagiarism litigation over The Da Vinci Code in a British court, they were ordered to pay the defendants' $1.75 million in attorneys' fees. The "American rule" differs; in most cases, each party bears its own expense of litigation. Supporters of tort reform argue that loser-pays rules are fairer, would compensate winners of lawsuits against the costs of litigation, would deter marginal lawsuits and tactical litigation, and would create proper incentives for litigation, and argue for reforms that would require compensation of winning defendants some or all the time.^[81] Certain proposed or implemented tort reforms adopt the English rule if the respondent should prevail but retain the American rule otherwise (e.g. Californa's special motion to strike in defamation suits).

In addition to reforms aimed at limiting plaintiff's abilities to claim particular categories of compensation, tort reform measures aimed at reducing the prevalence of lawsuits for negligence, the most commonly alleged tort, aim to revise the doctrine of comparative negligence. Comparative negligence is a partial legal defence that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury,^[82] which progressively displaced the erstwhile traditional doctrine of contributory negligence over the twentieth century which had precluded any damages being awarded in cases in which the plaintiff was deemed to be even partially at fault. Under standard or "pure" comparative negligence, a plaintiff can seek damages regardless of the portion of liability they bear, even where they are found to be more at fault than the respondent.^[83] As a tort reform measure aimed at combatting the perceived unfairness of allowing a party to seek extra-contractual damages where they are primarily at fault, many common law jurisdictions have adopted a "modified" doctrine of comparative negligence in which a party may only recover damages if it bears less than half the liability or if the other party bears more than half the liability.^[84] More radically, the American states of Alabama, Maryland, North Carolina, and Virginia continue to use contributory negligence, thus precluding a party who is even partly at fault from recovering damages for negligence.^[85]

The abolition of the collateral source rule (i.e. the principle that a respondent in a tort action cannot use the fact that a plaintiff has already been compensated as evidence^[86]) is another common proposal of tort reform advocates in jurisdictions where the rule exists. They argue that if the plaintiff's injuries and damages have already been compensated, it is unfair and duplicative to allow an award of damages against the respondent.^[87] As a result numerous states have altered or partially abrogated the rule by statute.^[88][86]

Regulation of contingent fees; as well as rules regarding barratry, champerty and maintenance, or litigation funding more generally; is another aspect of procedural policies and reforms designed to reduce the number of cases filed in civil court.

Relationship to contract law[edit]

Tort is sometimes viewed as the causes of action which are not defined in other areas such as contract or fiduciary law.^[89] However, tort and contract law are similar in that both involve a breach of duties, and in modern law these duties have blurred^[89] and it may not be clear whether an action "sounds in tort or contract"; if both apply and different standards apply for each (such as a statute of limitations), courts will determine which is the "gravamen" (the most applicable). Circumstances such as those involving professional negligence^[89] may involve both torts and contracts. The choice may affect time limits or damages, particularly given that damages are typically relatively limited in contract cases while in tort cases noneconomic damages such as pain and suffering may be awarded.^[89] Punitive damages are relatively uncommon in contractual cases versus tort cases.^[90] However, compensation for defective but not unsafe products is typically available only through contractual actions^[89] through the law of warranty.

In the United Kingdom, plaintiffs in professional negligence cases have some degree of choice in which law while in commercial transactions contract law applies; in unusual cases, intangible losses have been awarded in contract law cases.^[89]

The English case Hadley v. Baxendale (1854), which was adopted in the United States, split contract and tort damages by foreseeability of the damages when the contract was made.^[91] In the United States, the pure economic loss rule was adopted to further prevent negligence lawsuits in breach of contract cases.^[91] This "economic loss rule" was adopted by the Supreme Court of the United States East River Steamship Corp V Transamerica Delaval Inc. (1986) and expanded across the country in a non-uniform manner, leading to confusion.^[59] Among other examples, the tort of insurance bad faith arises out of a contractual relationship, and "collateral torts" such as wrongful dismissal involving possible overlap with labour law contracts.^[44]

Overlap with criminal law[edit]

There is some overlap between criminal law and tort. For example, in English law an assault is both a crime and a tort (a form of trespass to the person). A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of damages to a person injured in a car accident, or the obtaining of injunctive relief to stop a person interfering with their business). Criminal actions on the other hand are pursued not to obtain remedies to assist a person – although often criminal courts do have power to grant such remedies – but to remove their liberty on the state's behalf. This explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts. In early common law, the distinction between crime and tort was not distinct.^[92]

The more severe penalties available in criminal law also means that it requires a higher burden of proof to be discharged than the related tort. For example, in the O. J. Simpson murder trial, the jury was not convinced beyond reasonable doubt that O. J. Simpson had committed the crime of murder; but in a later civil trial, the jury in that case decided that there was sufficient evidence to meet the standard of preponderance of the evidence required to prove the tort of wrongful death.^[93]

Many jurisdictions, especially the US, retain punitive elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with criminal acts. Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment. Some torts may have a public element – for example, public nuisance – and sometimes actions in tort will be brought by a public body. Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restitution which criminal courts can directly order the defendant to pay to the victim.^{[citation needed]}

Law and economics[edit]

William M. Landes, Richard A. Posner, and Steven Shavell have initiated a line of research in the law and economics literature that is focused on identifying the effects of tort law on people's behavior.^[94][95] These studies often make use of concepts that were developed in the field of game theory.^[96]

See also[edit]

• Outline of tort law
• Causation in English law
• Index of tort articles
• Journal of Tort Law

Notes[edit]

References[edit]

Citations[edit]

Sources[edit]

Further reading[edit]

• P.S.A. Pillai (2014). Law of Tort. ISBN 978-93-5145-124-2.
• Eoin Quill (2014). Torts in Ireland. ISBN 978-0-7171-5970-3.
• Charu Sharma (2017). Tort Liability for Environment Claims in India: A Comparative View (1st). ISBN 9788131250693.

External links[edit]

Library resources about Tort

Resources in your library Resources in other libraries

• Media related to Tort law at Wikimedia Commons
• Quotations related to Torts at Wikiquote
• The dictionary definition of tort at Wiktionary