Cameron Miranda
Tort law in English common law is concerned with civil wrongdoings that cause harm to people's rights, health and safety, property, economic interests, honour, reputation, and privacy. The term 'tort' is derived from the Latin 'tortum', meaning 'something twisted, wrung, or crooked'. In common law jurisdictions, tort law is derived from customary English tort law and case-by-case decisions of judges, rather than an exhaustive code. The main remedy for plaintiffs in tort law is compensation in damages or money, and in some cases, the courts may grant an injunction.
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What You'll Learn
Harm to health, safety, and economic interests
Tort law in England has evolved through judicial decisions and statutory reforms, addressing various aspects of harm to health, safety, and economic interests.
One significant aspect of tort law in England is negligence, which has gained prominence over other types of torts. Negligence actions establish a duty of care owed to a group or an individual, and liability arises when this duty is breached, resulting in harm. This duty of care is a fundamental norm that requires individuals to exercise appropriate caution regarding the well-being and property of others. Negligence covers a wide range, including psychiatric injury, economic loss, and public body accountability.
Economic torts are another crucial aspect of protecting individuals from interference with their trade or business. These torts address situations where intentional harm is caused to another party through improper means, such as breach of contract or conspiracy. For example, a parent company that dissipates a subsidiary's funds, hindering their ability to meet contractual commitments, may trigger liability under economic torts. Additionally, economic antitrust torts have been partially superseded by modern competition law, but they still provide a basis for private parties to sue for anticompetitive practices in certain circumstances.
Tort law also encompasses health and safety regulations, with major statutory torts concerning food safety, health and safety in the workplace, and environmental law. For instance, the Nuclear Installations Act 1965 and the Merchant Shipping Act 1995 impose strict liability on entities to ensure the safety of their operations and products.
Furthermore, intentional torts cover intentional acts that are reasonably foreseeable to cause harm to an individual. These include torts against the person, such as assault, battery, and false imprisonment, as well as property torts, which involve intentional interference with the property rights of the claimant, such as trespass to land or chattels.
In summary, tort law in England provides a comprehensive framework to address harm to health, safety, and economic interests, with negligence, economic torts, health and safety regulations, and intentional torts being key components of this framework.
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Defamation and free speech
Tort law in common law jurisdictions, such as England, is derived from customary English tort law. It is concerned with "private wrongs" and addresses legal injuries that may include emotional, economic, or reputational harm, as well as violations of privacy, property, or constitutional rights.
English defamation law, which falls under tort law, has been criticised for its "chilling" effect on free expression. This is because it puts the burden of proof on the defendant, not requiring the plaintiff to prove falsehood. In response to these concerns, the Defamation Act of 2013 made significant changes by narrowing the criteria for a successful claim, mandating evidence of actual or probable harm, and strengthening the defences for website operators, public interest, and privileged publications.
Defamation refers to making false statements about someone that harm their reputation. It includes both libel (written) and slander (spoken). For a statement to be considered defamatory, it must be false, communicated to a third party, and result in harm to the subject's reputation. The line between defamation and free speech is often blurred, with free speech being a fundamental right in democratic societies. The law typically provides greater protection to commentary regarding public issues, even if false, to encourage open dialogue and debate.
In the United States, the First Amendment protects free speech, but there are limitations. Speech that constitutes hate speech, "true threats", or incites imminent lawless action is not protected. Similarly, false statements about a subject that cause harm to their reputation are not protected and can result in a defamation lawsuit. However, more protection is provided under the First Amendment if the false statement is about a public official or figure, to encourage discussion on public issues.
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Tort law and morality
The philosophical discussion of tort law has long been focused on understanding the role and significance of the moral vocabulary that pervades it. For instance, the basic norm of negligence in tort law requires that people exercise appropriate care around the bodies and property of others, reflecting a moral and social norm.
Tort law engages with two fundamental questions of morality and social life: how people are permitted to treat each other, and whose problem it is when things go wrong. It is concerned with practical problem-solving, rather than how a wrongdoer would be judged in a moral sense.
Corrective justice frames tort law as a form of moral or ethical obligation, structured in terms of first- and second-order duties. First-order duties specify particular behaviours, such as driving reasonably or refraining from trespassing. If an actor breaches their first-order duties, second-order duties arise, which are duties to repair or make the injured party "whole".
In the case of Mrs Donoghue, who claimed compensation for illness after consuming a ginger beer containing a decomposed snail, the House of Lords held that the manufacturer was liable in tort, based on a "general public sentiment of moral wrongdoing for which the offender must pay".
Tort law also seeks to incentivise actors to determine and maintain optimally safe choices and to internalise the costs of any injuries arising when they fail to do so. It operates in light of a calculus that balances the kinds of harms likely to flow from certain conduct against the costs of refraining from that conduct or taking precautions to minimise risk. This is especially relevant when considering the costs and benefits of companies taking excessive precautions to guarantee perfect safety, which may not be justified by efficiency or morality concerns.
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Tort law in common law countries
In common law jurisdictions, tort law addresses a range of legal injuries, including physical, economic, reputational, and violations of privacy, property, or constitutional rights. The main remedy available to plaintiffs in tort cases is compensation in the form of damages or money. This compensation aims to address the harm caused by the tortious act. In certain circumstances, self-help remedies, such as reasonable force to expel a trespasser, may also be permitted.
The development of tort law in common law countries has been influenced by philosophical and moral considerations. Scholars have drawn parallels between the law of torts and moral concepts, such as malice, fraud, intent, and negligence. However, it is important to note that the law of torts is more concerned with practical problem-solving than with moral judgement.
Common law countries, including the United States, Australia, Canada, New Zealand, and Singapore, have adopted and adapted English tort law to their respective legal systems. For example, in the United States, punitive damages are favoured in tort law, reflecting a preference for jury trials and a desire to punish wealthy defendants. In contrast, civil-law systems, such as those in France and Germany, generally take a hostile attitude towards penal damages in civil actions.
The evolution of tort law in common law countries is ongoing, with new challenges and areas of law, such as product liability and negligent statements, being addressed through tort principles. The common law of torts continues to shape legal obligations and provide remedies for individuals seeking redress for civil wrongs.
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Tort law in civil law jurisdictions
A few jurisdictions, such as Quebec, St. Lucia, and Mauritius, have codified a mixture of common and civil law due to their colonial past or the influence of multiple legal traditions. For example, in Quebec, the term "extracontractual responsibility" is used instead of "tort." Israel is another example of a mixed jurisdiction, essentially codifying common law provisions on tort.
In civil law jurisdictions, the availability of discovery, a pre-trial procedure unique to common law jurisdictions, is often regarded as destructive of the rule of law. Civil law countries argue that the investigative objective of discovery is the prerogative of the executive branch, and the creation of new rights through discovery is the prerogative of the legislative branch.
While civil law jurisdictions have detailed civil codes, some share doctrinal features with common-law systems. However, countries like France offer fundamentally different approaches to dealing with similar interactions and problems.
In terms of remedies, civil law jurisdictions in tort law cases also typically provide compensation in damages or money to plaintiffs. Additionally, in cases of continuing tort or imminent harm, courts may grant injunctions to prevent further wrongdoing.
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Frequently asked questions
Tort law, in common law, civil law, and most legal systems, concerns harmful behaviour, such as physical attack, interference with possessions, land, economic interests, honour, reputation, and privacy. It is a civil wrong, rather than a criminal wrong, and usually requires payment to make up for the damage caused.
The English system has long been based on a closed system of nominate torts, such as trespass, battery and conversion, and is derived from Roman law. The term 'tort' comes from the Latin 'tortum', meaning 'something twisted, wrung, or crooked'.
English tort law has been used to address modern problems such as product liability and liability for negligent statements. Other examples include slander, libel, and conspiracy.
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