Emerging Torts

The law of tort, or torts, is part of the English common law which has developed incrementally since Norman times. Academic writers are not agreed whether there is a law of tort or a law of torts. A law of tort implies some general common rules relevant to all parts of the law. A law of torts recognises that there are various separate and distinct aspects but also implies that the separate parts have something in common. It is a nice subject for a debate but of little practical importance. Although some modern torts have been created by statute, the law is still generally to be found in common law principles. The origins of torts can be traced back to the fourteenth century when the word ‘trespass’ was given a much wider legal meaning than it has today. It originally referred to ‘any direct and forcible injury to the person, land or property (chattels).’ Trespass was one of two medieval forms of action, the second being ‘trespass on the case’ or simply ‘case’. Case covered ‘injury which was consequential to a wrong but the wrong was neither forcible nor direct.’ The distinction can still be seen in the law of torts today – torts which are actionable per se, i.e. without proof of damage, such as trespass to land and trespass to the person, generally originate from the old form of trespass, while those torts which require proof of damage, for example negligence and nuisance, generally come from case. In the past, the distinction was of crucial importance as using the wrong form of action could result in the claimant being left without any remedy. Today, although there may be cost penalties, the Rules of Court allow for the amendment of pleadings. The legal historian will be able to find traces of the old rules in modern law but for practical purposes the distinction is of little relevance.