MODERN TRENDS IN THE LAW OF TORTS

Publication Date01 June 1937
AuthorW. Friedmann
Date01 June 1937
DOIhttp://doi.org/10.1111/j.1468-2230.1937.tb00006.x
June,
1937
MODERN
LAW
REVIEW
39
MODERN TRENDS IN THE
LAW
OF
TORTS
0
anyone who is used to consider the Common Law as a
venerable body of rules, built up slowly in the course of
centuries,
a
huge structure, to which has been added a
new piece here and there, recent developments in the English
Law of Torts must be a startling, and, to some,
a
disconcerting
phenomenon. All the more
so
since the bulk of recent changes
and extensions in tortious liability is due to judicial law-making.
Statutory reforms have been confined to a few special, although
important, topics. But judicial practice has done something more
than that. It has introduced a new spirit to that part of the law.
With the help of wide and general formulas, it has largely replaced
the traditional method
of
taking, as a point of departure, a par-
ticular form of action, by a new method of finding a remedy for
certain typical sets of fact and situations. This process has not
been limited to the action of negligence which is of comparatively
recent origin. Those modem principles of legal development,
which have shaped the action of negligence, have also invaded
other forms of action and partly altered their character. This
evolution has now reached a stage where an examination
from a comprehensive and co-ordinating point of view must be
attempted.
It is the purpose of this article to do so, not from a purely
analytical angle, but by taking into account the actual social and
economic function of the different forms of civil liability. This
approach will,
it
is hoped, enable us to proceed where a purely
analytical approach would have to stop.
An observation on comparative law should help to make the
object clearer. Most continental systems deal with tortious
liability from
a
broad and comprehensive point of view. The
French,
Swiss
and Italian Codes state, in various terms,
a
general
duty of reparation for acts unlawfully damaging another.1 The
German Civil Code (Art.
823)
is more explicit and determines
liability by
a
number of certain “absolute” rights, the wilful or
negligent violation of which engenders liability (apart from
a
general formula covering acts committed unlawfully and against
bonos
mores).
Such absolute rights are property, bodily integrity,
freedom, copyrights, etc. The English Law of Torts, on the other
hand, has not started from
a
general principle
of
liability. The
T
1
Cf.
Walton,
49
L.Q.R.,
78.
MODERN LAW REVIEW
June,
1937
causes of action in tort have developed from various sources,
unsystematically and with different objects, and this is still
strongly felt in the law as it stands now. Some torts-in particular
those which are in substance property actions, like trespass,
conversion,2 but not only those (see below)-centre round the
protection of
a
certain right. The conduct of the plaintiff
may or may not be material, but the gist of the action is inter-
ference with
a
certain right, not unlawful conduct. In this
respect negligence, for example, is a tort
of
a quite different
character.
It disregards the nature of the right interfered with. It does
not consider the object of the action, but the source. It traces the
injury back to its origin and thus arrives at stipulating the con-
ditions under which such origin is actionable. This links the
action of negligence to a number of other actions, such as most
cases of nuisance, the action based on
Rylands
v.
Fletcher,
liability of occupiers of premises, owners
of
dangerous things,
keepers of animals, etc. In all these torts the law looks
at
the
defendant and stipulates to what extent his freedom of action
is
limited by responsibility towards his fellow-citizens. Indeed,
injury or damage must be proved in all these torts; but such
injury may be of any kind, whether personal, property or pecun-
iary damage in general. Sir
F.
Pollock, who stood for
a
general
principle
of
liability in tort, did not seem to see any difficulty in
classifying the whole law of torts both as to the duty and to the
injured right. Quoting in support dicta by Lot-d Bowen in
Skinner
v.
Shew,
[1893]
I
Ch. 413, 422, and in the
Mogul
Case
(1889),
23
Q.B.D. 613, and of Holmes,
J.,
in
Ackens
v.
Wisconsilz
(195
U.S.,
194,
204),
he established the general principle that one must not
do unlawful harm to one’s neighbour.
(Torts,
13th ed., p.
6-21.)
On the other hand, Sir
F.
Pollock
also
classified torts by the nature
of the injured right. Having collected wrongs affecting personal
rights under Group
A,
and
wrongs
to possession and property
under Group
B,
he placed negligence, nuisance and breach
of
absolute duties under Group
C
as “Wrongs to the Person, Estate,
Property generally.” The very generality
of
this formula indi-
cates that the torts belonging to this last group cannot, in fact,
be classified by the nature of the injured right. Nor are the three
groups linked with each other by
an
ethical element of liability,
which, as Pollock shows, is strong in Group
A,
absent in Group
B,
and not strongly present in Group
C.
The central element
of
modem English tort is nevertheless, in Pollock’s analysis, duty,
*
Cf.
Pollock,
Torts,
p.
12-15,
on the way
in
which
“a
great
bulk
oi
what really
belonged to the law
of
property. was transferred to the law
of
torts.

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