LAWS1012 Lecture Notes - Lecture 1: False Imprisonment, Road Traffic Act 1930, Deterrence Theory
16 May 2018
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Week 1: General Introduction
I: The Historical Development of Tort Law
1. Origins of Tort Law
• Tort law is the law of civil liability for wrongfully inflicted injury
• Existence was designed for maintenance of public order
• Without tort law, it was believed there would be much unrestrained vengeance and feuds
• Form of legalised self help
• Awards:
➢ For the injured party, there was compensation and additional damages
➢ Under action furti, plaintiff could recover at least double damages
➢ If defendant caught red handed, then fourfold damages awarded
➢ All these incentives mitigated vigilante justice
• ‘oa la of tot alled delit:
➢ Developed in a piecemeal fashion
➢ But jurisdictions created Codes which reduced tort law to bare essentials
➢ Rests on 5 articles in the Code Civile which have remained in force virtually
unchanged
• English law of tort
➢ Did not create a general principle of tortious liability
➢ Anglo-American lawyers remained with separate types of case and separate torts
➢ American judge and jurist: Oliver Wendell Holmes wanted to find a common ground
for tortious liability and believed that to understand this, the full history of law of
torts must be examined. He decided we must look at forms of action
2. The Forms of Action
• Forms of action: type of writ needed to bring action to courts
• Forms of action have different procedures depending on the type of case
• A standard form of writs was developed from previously ad-hoc basis
• There were different standard writs for different actions
• These standard forms of action formed foundations of modern tort law
• The Writ of Trespass:
➢ Trespass to land, trespass to goods, trespass to the person (including modern torts
of assault, battery and false imprisonment)
➢ Commonality of these writs of trespass was that it required the defendant had acted
ith foe ad as o i et ais, ad i eah of the kigs peae, o ota
pacem
➢ Cases not involving these requirements left to local courts → peetig Kigs
Courts being overwhelmed with cases
➢ Action for trespass shows its semi-criminal nature, since a defendant who did not
appear could be seized and imprisoned. If he cannot be found, he may be outlawed
→ Greater popularity of action of trespass due to stringent punishment for
defendant
• Trespass on the Case
➢ Vi et armis (with force and arms) soon became unsatisfactory as a requirement
➢ Non-iolet tespasses ay ot e ale to eah Kigs Cout eause of this
requirement → not serving justice
➢ Plaintiffs had to prove why the defendant was at fault if there had been no crime
with vi et armis
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3. The Development of Fault-Based Liability
• Writs of Trepass and Fault
➢ The formulaic language used ont eh writs mean that it was not necessary to plead
the state of mind or culpability of the defendant
➢ Write of trespass included cases of accidental injury → hence, defendants fault
could not be taken for granted
• Negligence and Action on the Case
➢ Liability for negligence developed much more slower in tort law than in cases of pre-
existing relationships (or in modern terms, contract law)
➢ Earliest examples of liability imposed in absence of pre-existing relationships: escape
of fire or dangerous animals
➢ Actions for pure negligence were rare because existing law already covered most
situations – forcible wrongs in trespass, non-enforcible wrongs in modern law of
contract, indirect harm (like the fire or dangerous animals) was covered by existing
actions in case
4. Eighteenth Century Developments
• The Beginnings of Neglignece
➢ Mitchil v Alestree (1676) 1 Vent 295
➢ Plaintiff injured when one of the horses the defendant was trying to break in had
escaped and kicked her. On the first look (prima facie), the defendant would be
guilty of a forcible wrong and trespass on the case vi et armis
➢ HOWEVER, the defendant could potentially be protected if it was believed by the
jury that the horse acted independently in contact with the plaintiff
➢ Plaintiff alleged that the defedats og as to eak i the hoses
ipoidetly, ashly ad ithout due osideatio of the usuitaility of the
plae fo the pupose.
➢ Plaintiff was successful
➢ Also led to developed of vicarious liability
• The Direct/Indirect Distinction:
5. The Classification of Obligations
➢ Mode la has la of tot, la of otat, la of popety… ut fos of atio
were clumped together
➢ Contract (assumpit) – actions imposing personal obligations, rather than rights over
property
➢ Equity – imposed obligations on trustees and fiduciaries
➢ The rest of those actions in trespass were not as easy to classify
➢ From J.H. Baker, Introduction to English Legal History:
▪ Law of torts is so extensive and boundaries indistinct
▪ Old Feh od of tot deoted ay kid of legal ijuy… that is hy thee
was previously no distinction between breaches of contract and torts or
trespass. However, by the middle of the 17th century they were
distiguished ad tot a ee e doe hee thee is a speial
agreement, unless thee e duty y statute o oo la iuet. →
modern understanding
▪ Over the last century, expansion of tort of negligence has led to
reclassification of law of torts. However the concept of negligence has
changed in its primacy, as old tort law neer focused on it and plaintiffs might
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
For the injured party, there was compensation and additional damages. Under action furti, plaintiff could recover at least double damages. If defendant caught red handed, then fourfold damages awarded. All these incentives mitigated vigilante justice: o(cid:373)a(cid:374) la(cid:449) of to(cid:396)t (cid:272)alled (cid:858)deli(cid:272)t:(cid:859) But jurisdictions created codes which reduced tort law to bare essentials. Rests on 5 articles in the code civile which have remained in force virtually unchanged: english law of tort. Did not create a general principle of tortious liability. Anglo-american lawyers remained with separate types of case and separate torts. American judge and jurist: oliver wendell holmes wanted to find a common ground for tortious liability and believed that to understand this, the full history of law of torts must be examined. Trespass to land, trespass to goods, trespass to the person (including modern torts of assault, battery and false imprisonment)
