The law of Torts
The law of Torts is that it must be a case in which a private person may recover damages for loss sustained by him in consequence thereof.
Whether damage is small or large that is not important, for the action may have been brought to establish the point or principle or to vindicate wounded feelings or character. A person is liable from the moment he commits the torts. The distinction between tort and contract is that the duties in the former are primarily fixed by law while in the later they are fixed by the parties themselves. Further in torts the duties towards person generally in contract, it is towards specific person or persons. The general conditions of liability are as follows :–
(i) In general a tort consists in some act done by the defendant whereby he has without just cause or excuse causes some form of harm to the plaintiff. The law of torts exists for the purpose of preventing man from hurting one another, whether in respect to the property, their persons, their reputations or anything loss which is theirs. Fundamental principle of this branch of law is that one should hurt nobody by word or deeds. An action of torts therefore, is usually a claim for pecuniary compensation in respect of damage suffered as a result of invasion of a legally protected right.
Regarding the general principle of liability in torts it can be said that an unlawful, intention and positive act which inevitably caused damage to the plaintiff is prima facie actionable, at least if the damage is to the plaintiff’s person or tansible property as distinct from economic interest. In this connection it will be profitable to quote a passage from Salmond’s Law of Torts:–
Salmond argued that the second of these alternatives was that which had been accepted by our law, “Just as the criminal law consists of a body of rules establishing specific offences, so, he said”, the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged offence, or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse”. For Salmond there was no English law of tort, there was merely an English law of torts, that is, a list of acts and omissions which, in certain conditions were actionable. This book is entitled the Law of Torts, not the Law of Tort”. The forms of action, “Salmond said elsewhere” are dead, but their ghosts still haunt the precincts of the law. In their life they were powers of evil, and even in death they have not wholly ceased from troubling”.
But it is very doubtful whether Salmond’s theory is true now, or ever has been true. There is not a single case in the reports in which an action has been refused on the sole ground that it was new. It has been clearly established ever since the memorable judgment of Sir John Holt C.J. in Ashby v. White that mere novelty is no bar to an action, I wish never to hear this objection again “said Sir Charles Pratt, C.J. sixty years later. This action is for a tort; torts are infinitely various, not limited or confined, for there is nothing in nature, but may be an instrument of mischief. Similar statement may be found in more modern cases. The novelty of a claim may indeed raise a presumption against its validity. So a Court may remark :” It is enough to say that the world has gone on very well without such actions as these; and I doubt whether it would continue to do so if such things were allowed or, “I would not exclude the possibility of such an action, but none as yet ever appeared in the books. And this will not be the first”. But there is undoubtedly power to recognise a novel claim if justice so requires although the process may take time.
We can trace back to particular decisions the origin of many torts which are recognised as such at the present day of malicious prosecution of deceit in Pusley v. Freeman of inducement of breach of contract in Winsmore v. Greenbank of libel and of negligence. Again, it was only in 1964 that the existence of tort of intimidation was definitely established, the House of Lords affirming that it had power to adopt the common law to changing social circumstances. Again, although in 1888 a claim for damages for careless statement causing economic loss was dismissed as, “an attempt to manufacture a new action which the Court would not sanction, yet in 1963 the House of Lords recognised such a tort, and in 1977 re-stated its boundaries. In 1979, the House of Lords recognised a great expansion in the tort of passing off. But there are limits, difficult to state, but understood by most practitioners”, to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations; that must be left to legislation”. No English could would, or perhaps could utter such a statement as, “The law is what the taw should be.”
To some extent the critics seem to have misunderstood Salmond. He never committed himself to the proposition, certainly untenable now, and probably always so, that the law of torts is a closed and inexpensible system. To say that the law can be collected into pigeon holes does not mean that these pigeon holes may not be capacious, nor does it mean that they are incapable of being added to. “Salmond merely contended that these changes were not exclusively referable to any single principle. In this he was probably right. The factors relevant to a decision to impose, or not to impose, liability are many and varied.”
Regarding damage we must bear in mind that there must be wilful and conscious wrong doing or improper motive. In this case we are not concerned with that, but let us consider the second fault. Regarding that Salmond pointed out as follows :–
“Salmond said that a second condition usually demanded by the law for liability in an action of tort was the existence of either wrongful intention or culpable negligence on the part of the defendant. He wrote as follows :– “Pecuniary compensation is not in itself the ultimate object or a sufficient justification of legal liability. It is simply the instrument by which the law fulfils its purpose of penal coercion. When one man does harm to another without any intent to do so and without any negligence, there is in general no reason why he should be compelled to make compensation. The damage done is not thereby in any degree diminished. It has been done, and cannot be undone. By compelling compensation the loss is merely shifted from the shoulders of one man to those of another, but it remains equally heavy. Reason demands that a loss shall lie where it falls, unless some good purpose is to be served by changing its incidence, and in general the only purpose so served is that of punishment for wrongful intent or negligence. There is no more reason why I should insure other persons against the harmful results of my own activities, in the absence of any mens rea on my part, than why I should insure them against the inevitable incidents which result to them from the force of nature independent of human actions altogether. More recently a Canadian author has reasserted the point. “One value at the heart of tort law is the notion of individual responsibility, something that is central to Western civilisation”.
Hence Salmond was logically compelled to say of the decision in Rylands v. Fletcher, 19 which is founded upon a theory of strict liability : “No decision in the law of torts has done more to prevent the establishment of a simple, uniform, and intelligible system of civil responsibility”.
But this theory of author later on was given a go-bye and it was somehow widened.