Tort Law
Origin, Evolution and Modern Trends
Introduction to Tort Law
The word “tort” derives from the old
Norman/French equivalent for “wrong.” At each
time of the day, people suffer a variety of
“wrongs”, either to their person or dignity or
property or wealth but tort law does nor concern
itself with the manifold variety of perceived
“wrongs.” Rather, it concerns itself only with “ a
civil wrong, other than a breach of contract, which
the law will redress by an award of damages”
(Fleming, 9th ed., at 1)

The Scope of Tort Law


According to Justice La Forest, “a tort exists
where the law says it exists.” These circular
definitions reiterate the character of tort law as
essentially, a system of ‘judge-made’ law. Modern
tort law evolved from the decisions of premedieval English courts in which certain acts were
held to create legal liability and deserving of
remedies. The early precedents were later distilled
into what was known as “forms of action”
Tort law determines whether a particular conduct
is a “wrong” and if so, applies a remedy.
The Rise and Dominance of
Writs of Action

Early tort law was circumscribed by the writs
issued by the Chancery and forms of action. The
writ obtained in the King’s court commands the
defendant to appear in court and make a defence.
The form of action summarized the plaintiff’s
case. Where there was no appropriate form of
action, there was no justiciable wrong. In effect,
unless an alleged tortious act was covered by a
preordained writ and form of action, such conduct
could not be impleaded in the King’s Court.
Forms of Action



There was a near infinite variety of writs and
forms of action but the ascendancy of forms of
action in early common law was near absolute.
(Maine, Early Law and Custom, at 389). The
forms of action determined such things as:
jurisdiction, method of appearance, type of trial,
nature of judgment, 4, method of recovery of
judgment, etc.
“The forms of action rule us from their graves.”
(F.W. Maitland, The Forms of Action)
The Evolution of Tort Law

The dominance of writs and forms of action
ensured that there was no grand or universal
“concept” or “Theory” of tort law. Individual torts
reigned supreme. Each writ was tied to the
particular cause of action appropriate to its
circumstance and as specified in the form of
action. There were specific writs for “nuisance’,
“trespass”, “negligence”, etc. A defendant could
escape liability by raising infinite technical points
against the writ or form of action.
The Evolution of Tort Law
While we are no longer under the tyranny of
writs, modern tort law is a product of
centuries of improvisation, creation,
elaboration, and modification.
 Contemporary remedies which are available
include award of damages, injunctions,
permission to engage in self-help, et cetera.

Elements of Tort Law




Conduct deemed to be tortious must possess
certain qualities or characteristics.
First, the alleged conduct or omission must have
harmed the plaintiff or in some cases must
threaten to cause her harm.
Second, the actual harm or threatened harm must
be such as the law recognizes as being potentially
remediable.
Third, the law must recognize the harm as
justiciable. (Fridman, at 5)
The Courts and Element # 2


The point raised by element #2 is that the law
courts have over the centuries displayed
remarkable creativity and dexterity is reworking
the nature or types of activities that are potentially
remediable. In other words, courts create torts.
For example, nervous shock, procuring the breach
of a contract, and negligent misrepresentation
occasioning economic harm were hitherto
regarded as non-justiciable harms. Today, they are
harms justiciable in law.
Harm and Liability in Tort


Although the category of potentially remediable
harms has increased significantly, and continues to
increase, not all instances wherein harm is caused
would we inexorably infer the existence of a tort.
In order for a conduct to amount to a tort, it must
(a) have been declared in the past or may be
declared by a court in the future as such; and (b)
cause harm recognized by law as being remediable
Tort Law and Others


In some respects, tort and criminal law are related.
Both regimes operate on the basis of duties
imposed by law, those duties are generally owed
to all regardless of one’s consent or assent.
There are differences between a tort and a crime.
For the latter, there can be no liability if there is no
clearly defined crime. Second, while tort law is
concerned with redress, criminal law deals with
punishment. This latter distinction seems to have
been blurred by the award of punitive damages.
Tort Law and Others (Cont’d)

Modern scholars have also attempted to
differentiate tort law from other regimes on the
basis that it provides a framework for the
articulation and protection of various interests
possessed by members of society. Interference
with or harm to such interests, without acceptable
or reasonable reason for such interference or harm
is actionable at the instance of the aggrieved party.
This theory justifies the recognition of new
“interests” and the modification of old ones.
Tort Law and Others (Cont’d)

Given that “interests” morph or develop
over time, there is often a time law between
social/scholarly articulation of such
“interest/s” and the legal recognition of
such “interest/s.” Oftentimes, the courts
persist in the fiction that they are not
creating new torts but are only fine tuning
old law to serve novel or contemporary
needs.
The Utility of Tort Law
Like other branches of law, tort law
ostensibly serves some purposes. These are:
 Keeping the Peace of the Crown;
 Compensation to the injured party;
 Deterrence, eg, punitive damages
 Normative Signifier (maintenance of or
setting the standards of behavior)

Stare Decisis and Tort Law

Given the dominance of judicial reasoning and
judge-made law in the law of torts, significant
attention ought to be paid to the reasoning of the
court and where necessary, the dissenting views of
judges. It is in the reasoning of the court plus the
actual decisions that the law would be found. In a
few cases, statutory provisions will be examined.
It is however, in the opinion of the courts that we
shall devote our energies and intellect.