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The word tort derives from the Latin tortus, meaning crooked or twisted,

and the Norman-French tort, meaning wrong. In English law we use the

word tort to denote certain civil wrongs as distinct from criminal wrongs.

The early Anglo-Saxon did not distinguish between civil wrongs and criminal wrongs. In the Middle

Ages, however, the idea sprang up that certain

wrongs of an anti-social king, e.g. treason, murder, theft, arson, and the like,

were offences against the King or the State. The Kings peace, as it was called,

extended to every corner of the land, and all crimes were at the same time

breaches of the peace. Certain other wrongs, done by one person to another,

were disregarded by the King and the State. These were left to be enforced by

the person claiming to be injured or wronged. The injured claimant decided

whether to take action or not. The claim, if any, was for damages, i.e. money

compensation or reparation for the injury inflicted by the defendant.

Whether or not a claimant had a right of action against another for an

alleged wrong depended on the existence of a writ wherewith to begin the

action. The rights available depended in practice on the writs available. The

Forms of Action, as these were called, enshrined the rights. If there was no

writ there was no remedy available in the courts of law.

The most important all-purpose writ which covered the common civil

wrongs in medieval society was trespass. This was available for all direct

injuries to the person, goods, or lands. Thus a personal injury to another, e.g.

assault and battery, damage to personal goods, to gates, hedges, lands, or

mere entry on lands or cattle trespass, fell within the ambit of trespass.

The writ of trespass was aptly called the fertile mother of actions. After

the Statute of Westminster II, 1285, there grew up offshoots of trespass,

named trespass on the case. Whereas the writ of trespass was available for all


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direct and forcible injuries, the writs of trespass on the case were used for all

injuries which were indirect.

For example, where A walks across Bs land, or lifts Bs gate off its hinges,

or punches B on the nose, there is a direct and forcible injury to the property

or person of another: the writ of trespass lay.

But where A lights a fire on his or her own property which spreads to a

neighbours house and burns it, or where A digs a hole into which B falls, or

A leaves a log in the road and B trips over it and is injured, As action is not

direct and forcible: the writ of trespass did not lie. The claimant proceeded

by trespass on the case.

First, we must examine the distinctions between (a) a tort and a crime, (b) a

tort and a breach of contract, and (c) a tort and a breach of trust.

The object of criminal proceedings is primarily punishment. The police are

the principal agents to enforce the criminal law, though a private person may

also prosecute a criminal offence. If the defendant is found guilty the court

8 The law of torts

1 The nature of

a tort

(a) A crime


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may award the proper punishment. The object of proceedings in tort is not

punishment, but compensation or reparation to the claimant, previously designated as the plaintiff

for the loss or injury caused by the defendant, i.e. damages.

The same facts may disclose a crime and a tort. Thus, if A steals Bs coat,

there is (i) a crime of theft, and (ii) trespass to goods (a tort) and conversion

(also a tort). If X assaults Y, there is both a crime and a tort.


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In contract the duties are fixed by the parties themselves. They impose terms

and conditions themselves by their agreement. In tort, on the other hand, the

duties are fixed by law (common law or statute) and arise by the operation of

the law itself.

Here, too, the same circumstances may give rise to a breach of contract

and a tort. Thus, if A hires a taxi-cab driven by B, and B by dangerous driving injures the passenger,

(A), the latter will have a cause of action for

(i) breach of the contractual duty of care, and (ii) the tort of negligence.

So, too, where A employs privately a surgeon, B, to operate on As son, B

owes A a contractual duty of care. If B fails in that duty there will also be

liability in tort to the child.

As we have seen (p. 15) a breach of trust fell within the jurisdiction of the

Chancery Courts, and although compensation may be awarded for damage

suffered by reason of the breach of trust, the real distinction is due to the history of equity and

common law rather than to logical reasons and development.

The province of tort is to allocate responsibility for injurious conduct

(Lord Denning). Such is the area of the law with which we are concerned.

A tort has been defined as a civil wrong for which the remedy is a common

law action for unliquidated damages, and which is not exclusively the breach

of a contract or the breach of trust or other merely equitable obligation

(Salmond: Law of Torts).

Prof. P.H. Winfield, another important authority in this field, asserts that

tortious liability arises from the breach of a duty primarily fixed by law; such

duty is towards persons generally, and its breach is redressible by an action for

unliquidated damages (Law of Tort).

What is the essential difference between these two writers? One school

maintains there is a general principle of liability in tort, and that all harm is

actionable in the absence of just cause or excuse: i.e. there is a law of tort (not


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torts). The other school maintains that there are a number of specific torts,

and that unless the damage or injury suffered can be brought within the

scope of one or more of these torts there is no remedy.

As a general rule, where one person suffers unlawful harm or damage at the

hands of another, an action in tort for that damage or injury arises. An action

in tort lies, for example, in the situation where A negligently collides with Bs

stationary car on a road and causes damage to it.

Sometimes we find instances where harm is done by one person to another

yet the law does not provide a remedy: this is described as damnum sine

injuria (damage without legal wrong). Ordinary trade competition is the

most common example. Let us suppose that a giant supermarket sets up

adjacent to, and in competition with, a small family grocer, selling all goods

cheaper. The result could well be that the family grocer, unable to compete, is

180 Law Made Simple

(b) A breach of

contract

(c) Breach of a trust

Definition of a tort

Damage and liability


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forced out of business. Harm is done to the grocer and his or her family in

that they lose their livelihood, yet the law offers no remedy to them.

The law of torts 181

Mogul Steamship Co. v. McGregor, Gow & Co. (1892)


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The X company and the Y company were rival traders in China tea. The Y company persuaded

merchants in China not to act as the X companys agents, otherwise the Y company would withdraw

their agency. Held: that the Y company

acted with the lawful object of protecting and extending their trade and the

means used were not unlawful.

In contrast to the above, we can imagine a situation where there is a legal

wrong but no loss or damage. This is described as injuria sine damno, and is

an exception to the general rule that there must be damage or injury before

action may be brought. Certain torts are actionable per se (i.e. actionable in

themselves). Examples are trespass and libel: in either of these cases no loss

need be alleged or proved.

If A trespasses on Bs land, or if A removes Bs goods without lawful

authority, A may be sued in trespass; the mere entry on the land or the mere

removal of the article constitutes in each case a trespass. Similarly in libel, as

we shall see, the mere publication of the libel constitutes the wrong even

though the party defamed may have suffered no loss whatsoever.

In torts not actionable per se, the claimant will succeed only if it can be

proved that the defendant has infringed a legal right and that thereby the

claimant has suffered damage.

Malice in its popular and narrow sense means spite and ill-will. In law the

term has two distinct meanings which should be understood. Malice in its

legal sense means:

(i) The doing of a wrongful act intentionally, without just cause or excuse.

In other words wilful and conscious wrongdoing.

(ii) The doing of an act from some improper motive, i.e. a motive of which

the law disapproves for the act in question.

To act maliciously means, therefore, to do the act from some wrong and

improper motive, or merely to do the act intentionally.


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In tort, the intention or motive for an action is generally irrelevant.

Malice

Bradford Corporation v. Pickles (1895)

P, with a view to including Bradford Corporation to buy his land at a high

price, sank a shaft on his land which interfered with the water flowing in

undefined channels into the corporation reservoir. The corporation applied for

an injunction to restrain P from collecting the underground water. Held: that an

injunction would not lie. P was entitled as owner to draw from his land the

underground water. His malice, if any, in trying to force the purchase of the

land, was irrelevant. No use of property which would be legal if done with a

proper motive can be illegal if done with an improper motive.


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