The development of the law of torts

(a) Trespass and the rise of "case"

The "fertile mother of actions"^[4629] ^{^[4630] ^[4631] ^[4632] ^[4633] ^[4634] ^[4635] ^[4636] in English legal history was trespass.^[4637] It emerged in the course of the 13th century as a remedy for a class of very obvious and dangerous wrongs: wrongs that had been committed with force and arms and that constituted a breach of the king's peace ("vi et armis, et contra pacem Domini Regis").}

This grave allegation was necessary, originally, to justify the intervention of the royal courts; for the great bulk of trespasses at that time was dealt with by the local courts. It was only towards the end of the 14th century that the royal courts openly started to exercise jurisdiction over trespass actions in which the king could not be said to have a special interest. One of the first cases appears to have been the "Farrier's Case",^[4638] ^{^[4639] ^[4640] ^[4641] ^[4642] concerning a smith's liability for laming a horse that he was, rather unskilfully, shoeing: obviously, the smith's action could hardly be said to endanger the king's peace. Thus, a category of writs gradually came to be established that was characterized by the absence of the contra pacem clause: the special writ of trespass as opposed to the common writs that contained the allegation of a breach of peace. More important, from the point of view of substantive law, was another feature common to the cases where proceedings were initiated by a special writ: the wrong allegedly committed by the defendant was less obvious and some explanation was needed to substantiate the plaintiff's claim. In a common writ, the plaintiff had to describe only what the defendant had either done or failed to do.
But in the case of the farrier, for instance, the mere allegation that the smith had driven his nails into the quick of the horse's hoof and thereby caused the plaintiff damage was hardly sufficient to establish the wrongfulness of his behaviour. In addition, the plaintiff had to set out why the smith should have been under a duty to shoe the plaintiffs horse. Thus, a special clause introduced by the word "cum" (whereas) had to be included in the writ⁵³—the Roman lawyers would probably have called it a demonstratio. This clause contained the special facts of the case on which the success of the action depended, and hence the expressions "super casum", "stir son cas" or "on the case" were used to describe the new kind of writ. This was the origin of the distinction between (general) trespass and "case", a distinction that became firmly entrenched on account of certain procedural consequences attaching to the contra pacem clause in (general) trespass: breach of the king's peace was a most serious matter and had therefore always carried arrest and outlawry.⁵⁴ (b) The distinction between trespass and "case"
Trespass and case remained the principal writs which the common law offered against wrongful misconduct, but in the course of time standard
" Milsom, (1958) 74 LQR 407 sqq.; Simpson, History, pp. 200 sqq.
⁷'⁴ Milsom, Historical Foundations, op. cit., note 51, p. 263. It is significant to note that the defendant, if convicted, was liable to a hue and imprisonment (abolished only in 1694) since every trespass constituted a punishable offence; originally, no clear-cut division existed between crime and civil injury. Trespass, the action which exercised dominance over the growing law of torts, was "quasi-criminal" in character (Winfield, op. cit., note 2, p. 10). It aimed "at a punitive and exemplary result", and throughout the time of the Year Books, men were "punished" for their trespasses (Pollock and Maitland, vol.
II, p. 573). The transition from what we would call "criminal" to "civil" justice is described by Pollock and Maitland (vol. II, p. 522) in the following words; "[U]nder Edward I a favorite device of our legislators is that of giving double or treble damages to 'the party grieved'. They have little faith in 'communal accusation¹ or in any procedure that expects either royal officials or people in general to be active in bringing malefactors to justice. More was to be hoped from the man who had suffered. He would move if they made it worth his while. And so in a characteristically English fashion punishment was to be inflicted in the course of civil actions: it took the form of manifold reparation, of penal and exemplary damages." Further on the history of the distinction between tort and crime, see Winfield, op. cit., note 2, pp. 8 sqq.; Buckland/MacNair, pp. 344 sqq. While, generally speaking, the common law of torts (like its civilian counterpart, the law of delict) has moved from punishment to compensation, it has (unlike the civil law) never entirely abandoned the penal element. Some traces of the old link between tort and crime have survived to the present day, in particular the notion of exemplary ("punitive") damages to punish contumelious and outrageous wrongdoing (cf. Rookes v. Barnard [1964] AC 1192; Fleming, Torts, pp. 1 sq.; Winfield and jolowicz, pp. 616 sqq.). The old common-law rule that tort claims survive neither the death of the wrongdoer nor that of the victim (also due to the historical connection of trespass with criminal law, usually expressed in the adage "actio personalis moritur cum persona") was abrogated by statute in 1934 (Fleming, Torts. pp. 638 sqq.; Winfield and Jolowicz, pp. 657 sqq.). forms were evolved to cover the most common types of both of them. Thus, a whole variety of specific torts came to be recognized, among them assault, battery and false imprisonment as special forms of trespass to the person, trespass to land and trespass to chattels, libel and slander, nuisance, deceit, conversion and conspiracy.
The appropriate actions were in the nature of trespass, if they involved a forcible and direct injury; they constituted a subspecies of case, where the defendant's conduct had either not been forcible or not been direct. Assumpsit, it will be remembered, was a typical example of case,^{^[4643]} ^{^[4644]} and so were malicious prosecution, slander or deceit. The choice of the appropriate remedy could depend on rather delicate distinctions as the oft-quoted remark by Blackstone demonstrates: "[I]f I throw a log of timber into the highway, (which is an unlawful act), and another man tumbles over it, and is hurt, an action on the case only lies, it being a consequential damage; but if in throwing it I hit another man, he may bring trespass, because it is an immediate wrong."⁵¹'
What was the practical relevance of the division between case and trespass and of all the "finespun and cabalistic"^[4645] learning connected with it? Trespass, as a direct forcible injury, was prima facie wrongful, and thus it was up to the defendant to rebut the presumption by invoking a specific excuse or justification. Moreover, trespass was actionable per se, and thus the plaintiff succeeded without proof of actual damage. Case, on the other hand, covered situations where the plaintiffs act was not so obviously "wrong" and where, therefore, the form of conduct as such and the (eventual) infliction of an injury (in other words: the issue of causation) could hardly be taken to provide a satisfactory basis tor an action. Further criteria had to be resorted to: the plaintiff had to have suffered damages and, even more importantly, proof of cither wrongful intent or negligence on the part of the defendant was required.
(c) The rise of the tort of "negligence "
Case could thus be brought for inadvertent injuries and it became common, in the course of the 19th century, to refer to actions upon the case for negligence, to actions for negligence or, simply, to actionable negligence.
At first, these expressions clearly referred to the old action of trespass on the case, justified, in certain types of situations, by an allegation of negligence. Gradually, however, their meaning began to shift, and "negligence" was no longer merely conceived of as one of the ways of committing one of the established torts, but rather as a separate basis of tort liability in its own right. This shift "broadly coincided with the Industrial Revolution and was undoubtedly stimulated by the advent of machinery, urbanization and the faster traffic along turnpike and railway. Untold new sources of risk and losses made their appearance and confronted the law with problems it was unable to solve by recourse to its inherited, archaic tort remedies. At this crucial stage of social and economic reorientation, the courts responded to the call for a new pattern of loss adjustment by fastening on the concept of negligence". ™
It was the famous case of Donoghue v. Stevenson⁹ in which the new tort of negligence came to be recognized unequivocally by the House of Lords: "The law", as Lord Atkin put it in his speech/¹"
"... appears to be that in order to support an action for damages for negligence the complainant has to show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury."
Negligence—with duty, breach and damage as its three essential requirements — is the closest the English common law has come to a generalized form of tortious liability. Today it "overwhelmingly" occupies the attention both of courts and academic writers and has become "a unifying force of vast potential".^[4646] ^{^[4647] ^[4648] ^[4649]}
(d) The ghosts of the past
It has even been able to transform the basis of the liability for trespass. Trespass, it has been emphasized, was the remedy for forcible and direct injuries —for situations, that is, in which the defendant could typically be taken to have acted with unlawful intent: if one person rams a knife into another, he will not normally be able to claim that he did not intend to inflict an injury.
Yet, proof of such intention (or, for that matter: of negligence) was not required. Liability for trespass was thus traditionally strict.^[4650] As such, it was bound to be regarded as an intolerable atavism by 19th-century legal science. The principle of "no liability without fault", reflecting the needs and aspirations of contemporary individualism, was quickly raised to the status of an axiomatic truth.^[4651] Fault therefore became an essential ingredient of trespass; but since this happened at the very time when negligence emerged as a separate basis of tort liability, the range of trespass came to be limited, largely, to cases of intentional harm. For a long time it has been maintained, however, that if the plaintiff could show a direct injury caused by the act of the defendant, he was able to proceed in trespass rather than negligence—the advantage for him of this cause of action being that the defendant could escape liability only by proving inevitable accident.^[4652] This was established in Stanley v. Powell'¹'^[4653] and meant, in effect, that while liability for trespass to the person had ceased to be strict, there was still a decisive difference in the onus of proof between the two torts of trespass and negligence. Only in 1959 was it held that the burden of proving negligence in actions for unintentional trespass to the person rests upon the plaintiff, just as it docs in actions for negligence/'^[4654] Yet, one further distinction appeared at first to persist, and it was brought up in the 1965 case of Lctang v. Cooper.^[4655] Here the injured plaintiff^[4656] ^{^[4657] had waited for more than three years before finally deciding to sue, and it was obvious that by that time her claim in negligence was statute barred. Could she, under these circumstances, still fall back on an alternative claim in trespass? This depended on the interpretation given to the phrase, "actions for damages for negligence", as used in the Limitation (of Actions) Act. According to Diplock LJ, a cause of action today means no more than a factual situation which entitles one person to obtain a remedy from another in the courts, and an action founded upon a failure to exercise reasonable care must therefore be regarded as an action for negligence, notwithstanding the fact that it can also be called an action for trespass to the person.^6y Lord Denning MR took matters to their logical conclusion when he indicated that he "would go this one step further: when the injury is not inflicted intentionally, but negligently, I would say that the only cause of action is negligence and not trespass".^[4658]"
This episode is characteristic of the gradual process of adjustment following the abolition of the forms of action by the Judicature Act in 1873. It took a long time to discard most of the doctrinal vestiges of the now obsolete procedural heritage,^[4659] but, as Lord Atkin gallantly pronounced, "[w]hen [the] ghosts of the past stand in the path ofjustice clanking their medieval chains the proper course for thejudge is to pass through them undeterred".^[4660] Thus, it is no longer necessary today to canvass the procedural niceties of trespass and case. "Remedies", in the words of Denning J,^[4661] "now depend upon the substance of the right, not on whether they can be fitted into a particular framework". But how a common lawyer thinks about the "substance of a right" is still determined, as far as redress for the wrongful inflictional harm is concerned, by the traditional types of tortious liability that once developed in the procedural cast-iron moulds.^[4662]
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The development of the law of torts

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