A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act.^[1] Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others.^[2][a] Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

While tort law in civil law jurisdictions largely derives from Roman law, common law jurisdictions derive their tort law from customary English tort law. In civil law jurisdictions based on civil codes, both contractual and tortious or delictual liability is typically outlined in a civil code based on Roman Law principles. Tort law is referred to as the law of delict in Scots and Roman Dutch law, and resembles tort law in common law jurisdictions in that rules regarding civil liability are established primarily by precedent and theory rather than an exhaustive code. However, like other civil law jurisdictions, the underlying principles are drawn from Roman law. A handful of jurisdictions have codified a mixture of common and civil law jurisprudence either due to their colonial past (e.g. Québec, St Lucia, Mauritius) or due to influence from multiple legal traditions when their civil codes were drafted (e.g. Mainland China, the Philippines, and Thailand). Furthermore, Israel essentially codifies common law provisions on tort.

Overview

In common, civil, and mixed law jurisdictions alike, the main remedy available to plaintiffs under tort law is compensation in damages, or money. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction, such as in the English case of Miller v Jackson. Usually injunctions will not impose positive obligations on tortfeasors, but some jurisdictions, such as those in Australia, can make an order for specific performance to ensure that the defendant carries out certain legal obligations, especially in relation to nuisance matters.^[4] At the same time, each legal system provides for a variety of defences for defendants in tort claims which, partially or fully, shield defendants from liability. In a limited range of cases varying between jurisdictions, tort law will tolerate self-help as an appropriate remedy for certain torts. One example of this is the toleration of the use of reasonable force to expel a trespasser, which is typically also a defence against the tort of battery.

In some, but not all, civil and mixed law jurisdictions, the term delict is used to refer to this category of civil wrong, though it can also refer to criminal offences. Other jurisdictions may use terms such as extracontractual responsibility (France) or civil responsibility (Québec). In comparative law, the term tort is generally used.^[b] The word 'tort' was first used in a legal context in the 1580s,^[c] although different words were used for similar concepts prior to this time. A person who commits a tortious act is called a tortfeasor. Although crimes may be torts, the cause of legal action in civil torts is not necessarily the result of criminal action. A victim of harm, commonly called the injured party or plaintiff, can recover their losses as damages in a lawsuit. To prevail, the plaintiff in the lawsuit must generally show that the tortfeasor's actions or lack of action was the proximate cause of the harm, though the specific requirements vary between jurisdictions.

Common law

History

Torts and crimes in common law originate in the Germanic system of compensatory fines for wrongs, with no clear distinction between crimes and other wrongs.^[7] In Anglo-Saxon law, most wrongs required payment in money paid to the wronged person or their clan.^[8] Fines in the form of wīte (lit. 'blame' or 'fault') were paid to the king or holder of a court for disturbances of public order, while the fine of weregild was imposed on those who committed murder with the intention of preventing blood feuds.^[7] Some wrongs in later law codes were botleas 'without remedy' (e.g. theft, open murder, arson, treason against one's lord), that is, unable to be compensated, and those convicted of a botleas crime were at the king's mercy.^[9] Items or creatures which caused death were also destroyed as deodands. Alfred the Great's Doom Book distinguished unintentional injuries from intentional ones, and defined culpability based on status, age, and gender. After the Norman Conquest, fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown.^[10] The petty assizes (i.e. of novel disseisin, of mort d'ancestor, and of darrein presentment) were established in 1166 as a remedy for interference with possession of freehold land. The trespass action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. It arose in local courts for slander, breach of contract, or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made de cursu (available by right, not fee); however, it was restricted to interference with land and forcible breaches of the king's peace. It may have arisen either out of the "appeal of felony", or assize of novel disseisin, or replevin. Later, after the Statute of Westminster 1285, in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force.^[7] As its scope increased, it became simply "action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case.^[7]

In 1401, the English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle.^[7] Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for common carrier, which arose around 1400, was also emphasised in the medieval period.^[7] Unintentional injuries were relatively infrequent in the medieval period. As transportation improved and carriages became popular in the 18th and 19th centuries, however, collisions and carelessness became more prominent in court records.^[7] In general, scholars of England such as William Blackstone took a hostile view to litigation, and rules against champerty and maintenance and vexatious litigation existed.^[11] The right of victims to receive redress was regarded by later English scholars as one of the rights of Englishmen.^[12] Blackstone's Commentaries on the Laws of England, which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word tort in a few places.^[12]

In contemporary common law jurisdictions, successful claimants in both tort and contract law must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty.^[d][e] Legal injuries addressable under tort law in common law jurisdictions are not limited to physical injuries and may include emotional, economic,^[f] or reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise such varied topics as automobile accidents, false imprisonment, defamation, product liability, copyright infringement, and environmental pollution (toxic torts). Modern torts are heavily affected by insurance and insurance law, as many cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with the insurance policy setting a ceiling on the possible payment.^[13]

Liability

While individuals and corporations are typically only liable for their own actions, indirect liability for the tortious acts of others may arise by operation of law, notably through joint and several liability doctrines as well as forms of secondary liability. Liability may arise through enterprise liability or, in product liability cases in the United States, market share liability. In certain cases, a person might hold vicarious liability for their employee or child under the law of agency through the doctrine of respondeat superior. For example, if a shop employee spilled cleaning liquid on the supermarket floor and a victim fell and suffered injuries, the plaintiff might be able to sue either the employee or the employer. There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation.^[2]

Absolute liability, under the rule in M. C. Mehta v. Union of India, in Indian tort law is a unique outgrowth of the doctrine of strict liability for ultrahazardous activities. Under the precedent established in the English case of Rylands v Fletcher, upon which the Indian doctrine of absolute liability is based, anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own purposes anything likely to cause mischief if it escapes is answerable for all direct damage thereby caused.^[14] While, in England and many other common law jurisdictions, this precedent is used to impose strict liability on certain areas of nuisance law^[15] and is strictly "a remedy for damage to land or interests in land" under which "damages for personal injuries are not recoverable",^[16] Indian courts have developed this rule into a distinct principle of absolute liability, where an enterprise is absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from the operation of hazardous activity.^[17] This differs greatly from the English approach as it includes all kinds of resulting liability, rather than being limited to damage to land.^[17]

In New Zealand, the tort system for the majority of personal injuries was scrapped with the establishment of the Accident Compensation Corporation, a universal system of no-fault insurance.^[18] The rationale underlying New Zealand's elimination of personal injury torts was securing equality of treatment for victims regardless of whether or the extent to which they or any other party was at fault.^[19] This was the basis for much of Professor Patrick Atiyah's scholarship as articulated in Accidents, Compensation and the Law (1970). Originally his proposal was the gradual abolition of tort actions, and its replacement with schemes like those for industrial injuries to cover for all illness, disability and disease, whether caused by people or nature. In addition to the development of the Accident Compensation Corporation to eliminate personal injury lawsuits, the tort system for medical malpractice was scrapped in New Zealand, both following recommendations from the Royal Commission in 1967 for 'no fault' compensation scheme (see The Woodhouse Report).^[19]

In the case of the United States, a survey of trial lawyers identified several modern innovations that developed after the divergence of English and American tort law, including strict liability for products based on Greenman v. Yuba Power Products, the limitation of various immunities (e.g. sovereign immunity, charitable immunity), comparative negligence, broader rules for admitting evidence, increased damages for emotional distress, and toxic torts and class action lawsuits. However, there has also been a reaction in terms of tort reform, which in some cases have been struck down as violating state constitutions, and federal preemption of state laws.^[20]

Categories of torts in common law jurisdictions

Torts may be categorised in several ways, with a particularly common division between negligent and intentional torts. Quasi-torts are unusual tort actions. Particularly in the United States, "collateral tort" is used to refer to torts in labour law such as intentional infliction of emotional distress ("outrage");^[21] or wrongful dismissal; these evolving causes of action are debated and overlap with contract law or other legal areas to some degree.^[22] In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, workers' compensation laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside the traditional common law torts. These are loosely grouped into quasi-torts or liability torts.^[23]

Negligence

The tort of negligence is a cause of action leading to relief designed to protect legal rights^[g] from actions which, although unintentional, nevertheless cause some form of legal harm to the plaintiff. In order to win an action for negligence, a plaintiff must prove: duty, breach of duty, causation, scope of liability, and damages. Further, a defendant may assert various defences to a plaintiff's case, including comparative fault and assumption of risk. Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person. Although credited as appearing in the United States in Brown v. Kendall, the later Scottish case of Donoghue v Stevenson AC 562, followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions.^[24] In Donoghue, Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence.

In most common law jurisdictions, there are four elements to a negligence action:^[25]

1. duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable care^[h]
2. breach: the defendant breaches that duty through an act or culpable omission
3. damages: as a result of that act or omission, the plaintiff suffers an injury
4. causation: the injury to the plaintiff is a reasonably foreseeable^[i] consequence of the defendant's act or omission under the proximate cause doctrine.^[j]

Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm.^[30] Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages.^[30] However, at their heart, the various definitions of what constitutes negligent conduct are very similar. Depending on jurisdiction, product liability cases such as those involving warranties may be considered negligence actions or fall under a separate category of strict liability torts. Similarly, cases involving environmental or consumer health torts which other countries treat as negligence or strict liability torts are treated in India as absolute liability torts.

In establishing whether a duty of care exists, different common law jurisdictions have developed a variety of distinct but related approaches, with many jurisdictions building on the test established in Anns v Merton LBC. In Singapore, the current leading case is Spandeck Engineering v Defence Science and Technology Agency, which builds on Anns by establishing a two step test comprising an analysis of proximate cause and public policy as a universal test, independent from the individual circumstances of a given case, for determining the existence of a duty of care. The Supreme Court of Canada established a similar test in the context of assessing damages for pure economic loss owing to negligence derived from Anns which consists of a two step examination of the existence of a sufficiently proximate relationship between the parties and public policy considerations; however, the Canadian test is more sensitive to the individual circumstances of a given case and the first step is generally deemed to be met where a case falls into one of three sets of circumstances recognised by precedent while the Singaporean test is independent of precedent. In English tort law, Caparo Industries plc v Dickman established a tripartite test for the existence of a duty of care per which harm must be reasonably foreseeable as a potential result of the defendant's conduct; the parties must be in a relationship of proximity; and it must be fair, just, and reasonable to impose such a duty.

Intentional torts

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories:

• Torts against the person include assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud, although the latter is also an economic tort.
• Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognised include trespass to land, trespass to chattels (personal property), and conversion.
• Dignitary torts are a category of intentional tort affecting the honour, dignity, and reputation of an individual and include: Defamation,^[k] invasion of privacy, breach of confidence, torts related to the justice system such as malicious prosecution and abuse of process, and torts pertaining to sexual relations that are considered obsolete in most common law jurisdictions such as alienation of affection and criminal conversation.

An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy the intent requirement.^[31] Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.

Nuisance

"Nuisance" is traditionally used to describe an activity which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private nuisance) or the general public (public nuisance). The claimant can sue for most acts that interfere with their use and enjoyment of their land. In English law, whether activity was an illegal nuisance depended upon the area and whether the activity was "for the benefit of the commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet.^[32] The case Jones v Powell (1629) provides an early example, in which a person's professional papers were damaged by the vapors of a neighboring brewery. Although the outcome of this case is unclear,^[32] Whitelocke of the Court of the King's Bench is recorded as saying that since the water supply in area was already contaminated, the nuisance was not actionable as it is "better that they should be spoiled than that the commonwealth stand in need of good liquor".^{[citation needed]}

In English law, a related category of tort liability was created in the case of Rylands v Fletcher (1868): strict liability was established for a dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. In Cambridge Water Co Ltd v Eastern Counties Leather plc (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs.^[33] The Rylands rule remains in use in England and Wales. In Australian law, it has been merged into negligence.^[34]

Economic torts

Economic torts^[l] typically involve commercial transactions, and include tortious interference with trade or contract, fraud, injurious falsehood, and negligent misrepresentation. Negligent misrepresentation torts are distinct from contractual cases involving misrepresentation in that there is no privity of contract; these torts are likely to involve pure economic loss which has been less-commonly recoverable in tort. One criterion for determining whether economic loss is recoverable is the "foreseeability" doctrine.^[35] The economic loss rule is highly confusing and inconsistently applied^[36] and began in 1965 from a California case involving strict liability for product defects; in 1986, the U.S. Supreme Court adopted the doctrine in East River S.S. Corp. v. Transamerica Deleval, Inc.^[37] In 2010, the supreme court of the U.S. state of Washington replaced the economic loss doctrine with an "independent duty doctrine".^[38]

Economic antitrust torts have been somewhat submerged by modern competition law. However, in the United States, private parties are permitted in certain circumstances to sue for anticompetitive practices, including under federal or state statutes or on the basis of common law tortious interference, which may be based upon the Restatement (Second) of Torts §766.^[39]

Negligent misrepresentation as tort where no contractual privity exists was disallowed in England by Derry v Peek ; however, this position was overturned in Hedley Byrne v Heller in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant.^[40] United States courts and scholars "paid lip-service" to Derry; however, scholars such as William Prosser argued that it was misinterpreted by English courts.^[40] The case of Ultramares Corporation v. Touche (1932) limited the liability of an auditor to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s.^[40] The Restatement (Second) of Torts expanded liability to "foreseeable" users rather than specifically identified "foreseen" users of the information, dramatically expanding liability and affecting professionals such as accountants, architects, attorneys, and surveyors.^[40] As of 1989, most U.S. jurisdictions follow either the Ultramares approach or the Restatement approach.^[40]

The tort of deceit for inducement into a contract is a tort in English law, but in practice has been replaced by actions under Misrepresentation Act 1967.^[41] In the United States, similar torts existed but have become superseded to some degree by contract law and the pure economic loss rule.^[42] Historically (and to some degree today), fraudulent (but not negligent^[42]) misrepresentation involving damages for economic loss may be awarded under the "benefit-of-the-bargain" rule (damages identical to expectation damages in contracts^[42]) which awards the plaintiff the difference between the value represented and the actual value.^[42] Beginning with Stiles v. White (1846) in Massachusetts, this rule spread across the country as a majority rule with the "out-of-pocket damages" rule as a minority rule.^[42] Although the damages under the "benefit-of-the-bargain" are described as compensatory, the plaintiff is left better off than before the transaction.^[42] Since the economic loss rule would eliminate these benefits if applied strictly, there is an exception to allow the misrepresentation tort if not related to a contract.^[42]

Remedies and defences in common law jurisdictions

The remedies and defences available in common law jurisdictions are typically similar, deriving from judicial precedent with occasional legislative intervention. Compensation by way of damages is typically the default remedy available to plaintiffs, with injunctions and specific performance being relatively rare in tort law cases. Relatively uniquely for a common law jurisdiction, Singapore's Community Disputes Resolution Act 2015 (CDRA) alters the common law by codifying a statutory tort of "interference with enjoyment or use of place of residence" and provides for a variety of remedies beyond damages, ranging from injunctions and specific performance to court-ordered apologies.^[43] Where a court order providing for a remedy other than damages is awarded under the CDRA is violated, sections 5-8 of the act require that the plaintiff apply for a 'special direction' to be issued in order to enforce the original remedy and section 9 provides that failure to comply with a special direction is grounds for the court to issue an order excluding the tortfeasor from their residence.^[43] Aside from legislatively created remedies such as the CDRA, courts in common law jurisdictions will typically provide for damages (which, depending on jurisdiction, may include punitive damages), but judges will issue injunctions and specific performance where they deem damages not to be a sufficient remedy. Legislatures in various common law jurisdictions have curtailed the ability of judges to award punitive or other non-economic damages through the use of non-economic damages caps and other tort reform measures.

Apart from proof that there was no breach of duty (in other words, that a tortious act was not committed in the first place), there are three principal defences to tortious liability in common law jurisdictions:

• Consent and warning: Typically, a victim cannot hold another liable if the victim has implicitly or explicitly consented to engage in a risky activity. This is frequently summarised by the maxim "volenti non fit injuria" (Latin: "to a willing person, no injury is done" or "no injury is done to a person who consents"). In many cases, those engaging in risky activities will be asked to sign a waiver releasing another party from liability. For example, spectators to certain sports are assumed to accept a risk of injury, such as a hockey puck or baseball striking a member of the audience. Warnings by the defendant may also provide a defence depending upon the jurisdiction and circumstances. This issue arises, for example, in the duty of care that landowners have for guests or trespasses, known as occupiers' liability.
• Comparative or contributory negligence: If the victim has contributed to causing their own harm through negligent or irresponsible actions, the damages may be reduced or eliminated.
  • Contributory negligence: The English case Butterfield v. Forrester (1809) established this defence. In England, this "contributory negligence" became a partial defence, but in the United States, any fault by the victim eliminated any damages.^[44] This meant that if the plaintiff was 1% at fault, the victim would lose the entire lawsuit.^[44] This was viewed as unnecessarily harsh and therefore amended to a comparative negligence system in many states; as of 2007 contributory negligence exists in only a few states such as North Carolina and Maryland.^[44]
  • Comparative negligence: In comparative negligence, the victim's damages are reduced according to the degree of fault. Comparative negligence has been criticised as allowing a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant. Economists have further criticised comparative negligence as not encouraging precaution under the calculus of negligence. In response, many states now have a 50% rule where the plaintiff recovers nothing if the plaintiff is more than 50% responsible.
• Illegality: If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. The legal maxim ex turpi causa non oritur actio, Latin for "no right of action arises from a despicable cause". Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained but for the property owner's intervention.
• Other defences and immunities:
  • Sovereign immunity
  • Good Samaritan laws, especially in jurisdictions with a statutory or common law duty to rescue
  • Charitable immunity

Discovery in tort litigation

Discovery (or disclosure), a concept unique to common law jurisdictions, is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can open-endedly demand evidence from the other party or parties by means of discovery devices such as interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.^[45] In tort litigation, the availability of discovery enables plaintiffs to essentially carry out a private investigation, subpoenaing records and documents from the defendant.^[46] Consequently, commentators in civil law jurisdictions regard discovery destructive of the rule of law and as "a private inquisition."^[47] Civil law countries see the underlying objectives of discovery as properly monopolised by the state in order to maintain the rule of law: the investigative objective of discovery is the prerogative of the executive branch, and insofar as discovery may be able to facilitate the creation of new rights, that is the prerogative of the legislative branch.^[47] The availability of discovery in common law jurisdictions means that plaintiffs who, in other jurisdictions, would not have sufficient evidence upon which to file a tort claim are able to do so in the hope that they will be able to obtain sufficient evidence through discovery. The primary drawbacks of this are that, on one hand, it creates the possibility that a plaintiff filing suit in good faith may not find enough evidence to succeed and incur legal expenses driven upward due to the cost of discovery; and, on the other hand, that it enables plaintiffs arguing in bad faith to initiate frivolous tort lawsuits and coerce defendants into agreeing to legal settlements in otherwise unmeritorious actions.

Variation between common law jurisdictions

Among common law countries today, there are significant differences in tort law. Common law systems include United States tort law, Australian tort law, Canadian tort law, Indian tort law, and the tort law of a variety of jurisdictions in Asia and Africa. There is a more apparent split in tort law between the Commonwealth countries and the United States.^[18] Despite diverging from English common law in 1776, earlier than the other common law jurisdictions, United States tort law was influenced by English law and Blackstone's Commentaries, with several state constitutions specifically providing for redress for torts^[12] in addition to reception statutes which adopted English law. However, tort law globally was viewed^[who?] as relatively undeveloped by the mid-19th century; the first American treatise on torts was published in the 1860s but the subject became particularly established when Oliver Wendell Holmes, Jr wrote on the subject in the 1880s.^[12] Holmes' writings have been described as the "first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain",^[48] although Holmes' summary of the history of torts has been critically reviewed.^[49] The 1928 US case of Palsgraf v. Long Island Railroad Co. heavily influenced the British judges in the 1932 House of Lords case of Donoghue v Stevenson. The United States has since been perceived as particularly prone to filing tort lawsuits even relative to other common law countries, although this perception has been criticised and debated.^[23] 20th century academics have identified that class actions were relatively uncommon outside of the United States,^[23] noting that the English law was less generous to the plaintiff in the following ways: contingent fee arrangements were restricted, English judges tried more decisions and set damages rather than juries, wrongful death lawsuits were relatively restricted, punitive damages were relatively unavailable, the collateral source rule was restricted, and strict liability, such as for product liability, was relatively unavailable.^[23] The English welfare state, which provides free healthcare to victims of injury, may explain the lower tendency towards personal injury lawsuits in England.^[23] A similar observation has also been made with regard to Australia.^[18]

While Indian tort law is generally derived from English law, there are certain differences between the two systems. Indian tort law uniquely includes remedies for constitutional torts, which are actions by the government that infringe upon rights enshrined in the Constitution, as well as a system of absolute liability for businesses engaged in hazardous activity as outlined in the rule in M. C. Mehta v. Union of India. Similar to other common law jurisdictions, conduct which gives rise to a cause of action under tort law is additionally criminalised by the Indian Penal Code, which was originally enacted in 1860.^[50] As a result of the influence of its relatively early codification of criminal law, the torts of assault, battery, and false imprisonment are interpreted by Indian courts and the courts of jurisdictions that were formerly part of the British Indian Empire (e.g. Pakistan, Bangladesh) and British colonies in South East Asia which adopted the Indian Penal Code (i.e. Singapore, Malaysia, and Brunei) with reference to analogous crimes outlined in the code. For instance, assault is interpreted in the context of s.351 per which the following criteria constitute assault:^[51]

• Making of any gesture or preparation by a person in the presence of another.
• Intention or knowledge of likelihood that such gesture or preparation will cause the person present to apprehend that the person making it is about to use criminal force on them.

Similarly, battery is interpreted in the context of criminal force as outlined in s.350.^[52][m]

An area of tort unique to India is the constitutional tort, a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle.^[54] In practice, constitutional torts in India serve the role served by administrative courts in many civil law jurisdictions and much of the function of constitutional review in other jurisdictions, thereby functioning as a branch of administrative law rather than private law. Rather than developing principles of administrative fairness as a distinct branch of law as other common law jurisdictions have, Indian courts have thus extended tort law as it applies between private parties to address unlawful administrative and legislative action.

Within Canada's common law provinces, there is currently no consistent approach to the tort of invasion of privacy. Four provinces (British Columbia,^[55] Manitoba,^[56] Newfoundland^[57] and Saskatchewan^[58]) have created a statutory tort. Ontario has recognised the existence of the tort of "intrusion upon seclusion",^[59] which has also been held to exist under tort law in the United States. British Columbia, on the other hand, has held that the tort does not exist in that province under the common law.^[60] Like the United Kingdom and British Columbia,^[60] but unlike Ontario^[59] and most jurisdictions in the United States, Indian tort law does not traditionally recognise a common law tort of invasion of privacy or intrusion on seclusion.^[61] Nevertheless, there is a shift in jurisprudence toward recognising breech of confidentiality as an actionable civil wrong.^[62] Proponents of protection for privacy under Indian tort law argue that "the right to privacy is implicit" in Article 21 of the Constitution of India, which guarantees protections for personal liberties.^[61] Despite the lack of a tort addressing violations of privacy by private individuals, the Supreme Court recognised privacy as a constitutional right in 2017. Similarly, neither intentional infliction of emotional distress (IIED) nor negligent infliction of emotional distress (NIED) is recognised as a tort in Indian jurisprudence.^[63] While claims seeking damages for infliction of emotional distress were historically an accessory claim in a tort action alleging another distinct tort, the doctrine has evolved in North America into a stand-alone tort while English jurisprudence has evolved to typically recognise only recognised psychiatric injuries as grounds for compensation.^[63] Indian courts, while recognising the infliction of emotional distress regardless of intention as an actionable wrong in matrimonial disputes,^[64] typically follow the English approach, although case law from both the United Kingdom and North America is frequently employed by judges ruling on cases in which damages for mental distress are sought.^[63]

Scots and Roman-Dutch law

Both Scots and Roman-Dutch law are uncodified, scholarship-driven, and judge-made legal systems based on Roman law as historically applied in the Netherlands and Scotland during the Enlightenment. In both legal systems, when applied in English speaking countries, the term delict is used to refer to tortious liability (unlike, for instance, in Spain where the cognate of the term delict refers to a criminal offence). Unlike in systems based on civil codes or on the English common law, Scots and Roman-Dutch law operate on broad principles of liability for wrongdoing; there is no exhaustive list of named delicts in either system; if the conduct complained of appears to be wrongful, the law will afford a remedy even in the absence of precedent pertaining to similar conduct.^[65] In South Africa and neighbouring countries, the Roman-Dutch law of delict is in force, having been preserved after the United Kingdom annexed Dutch settlements in South Africa and spread as neighbouring British colonies adopted South African law via reception statutes. Roman-Dutch law also forms the basis for the legal system of Sri Lanka.

Elements of delict

The elements of a delict as follows:^[66] The elements of harm and conduct are fact-based inquiries, while causation is part-factual and part-normative, and wrongfulness and fault are entirely normative: that is, value-based, in that they articulate a wider societal policy perspective. Delict is "inherently a flexible set of principles that embody social policy."^[67]

1. harm sustained by the plaintiff;^[n]
2. conduct on the part of the defendant which is wrongful;^[o]
3. a causal connection between the conduct and the plaintiff's harm; and
4. fault or blameworthiness^[p] on the part of the defendant.

Remedies under Scots and Roman-Dutch law of delict

Under the Scots and Roman-Dutch law of delict, there are two main remedies available to plaintiffs:

• the actio legis Aquiliae, or Aquilian action, which relates to patrimonial loss (i.e. economic damages);
• the actio iniuriarum, which relates to injuries to non-patrimonial loss (i.e. non-economic damages);

Protected interests which can give rise to delictual liability can be broadly divided into two categories: patrimonial and non-patrimonial interests. Patrimonial interests are those which pertain to damages to an individual's body or property, which both Scots and Roman-Dutch law approach in the context of the Roman Lex Aquilia. Non-patrimonial interests include dignitary and personality related interests (e.g. defamation, disfigurement, unjust imprisonment) which cannot be exhaustively listed which are addressed in the context of the Roman Actio iniuriarum, as well as pain and suffering which are addressed under jurisprudence that has developed in modern times. In general; where an individual violates a patrimonial interest, they will incur Aquilian liability; and, where an individual violates a non-patrimonial interest, they will incur liability stemming from the actio iniuriarum. While broadly similar due to their common origin, the nature of the remedies available under contemporary Scots and Roman-Dutch law vary slightly, although the aquilian action and actio iniuriarum are the primary remedies available under both systems. The primary difference between the two remedies is that the aquilian action serves a compensatory function (i.e. providing economic damages to restore the plaintiff to their previous state) while the actio iniuriarum provides for non-economic damages aimed at providing solace to the plaintiff. In Roman-Dutch law (but not in Scots law), there is also a distinct action for pain and suffering relating to pain and suffering and psychiatric injury, which provides for non-economic damages similar to those under the actio iniuriarum. The various delictual actions are not mutually exclusive. It is possible for a person to suffer various forms of harm at the same time, which means that a person may simultaneously claim remedies under more than one action.^[70]

The elements of liability under the actio iniuriarum are as follows:

• harm, in the form of a violation of a non-patrimonial interest (one's corpus,^[q] dignitas^[r] and fama^[s]);
• wrongful conduct; and
• intention.

There are five essential elements for liability in terms of the actio legis Aquiliae:

1. The harm must take the form of patrimonial loss.
2. The conduct must take the form of a positive act or an omission or statement.
3. The conduct must be wrongful: that is to say, objectively unreasonable and without lawful justification.^[71]
4. One must be at fault, and one's blameworthiness must take the form of dolus (intention) or culpa (negligence). One must, however, be accountable for one's conduct before one can be blameworthy.
5. There must be causation both factual and legal. For the former, the conduct must have been a sine qua non of the loss; for the latter, the link must not be too tenuous.

In Scots law, the aquilian action has developed more expansively and may be invoked as a remedy for both patrimonial and certain types of non-patrimonial loss, particularly with regard to personal injury. By way of a legal fiction, 'personal injury' is treated as (physical) 'damage done', with the net effect that 'the actio injuriarum root of Scots law infuses the delict assault as much as any development of the lex Aquilia'^[72] and wrongdoing that results in physical harm to a person may give rise to both an aquilian action and an actio iniuriarum. Additionally, the modern Scots law pertaining to reparation for negligent wrongdoing is based on the lex Aquilia and so affords reparation in instances of damnum injuria datum - literally loss wrongfully caused - with the wrongdoing in such instances generated by the defender's culpa (i.e., fault). In any instance in which a pursuer (A) has suffered loss at the hands of the wrongful conduct of the defender (B), B is under a legal obligation to make reparation. If B's wrongdoing were intentional in the circumstances, or so reckless that an 'intention' may be constructively inferred (on the basis that culpa lata dolo aequiparatur - 'gross fault is the same as intentional wrongdoing'), then it follows axiomatically that B will be liable to repair any damage done to A's property, person or economic interest: 'wherever a defender intentionally harms the pursuer - provided the interest harmed is regarded as reparable - the defender incurs delictual liability'.^[73] If the pursuer has suffered loss as the result of the defender's conduct, yet the defender did not intend to harm the pursuer, nor behave so recklessly that intent might be constructively inferred, the pursuer must demonstrate that the defender's conduct was negligent in order to win their case. Negligence can be established, by the pursuer, by demonstrating that the defender owed to them a 'duty of care' which they ultimately breached by failing to live up to the expected standard of care. If this can be shown, then the pursuer must also establish that the defender's failure to live up to the expected standard of care ultimately caused the loss (damnum) complained of.

Defences under Scots and Roman-Dutch law of delict

There is a distinction between defences aimed at the wrongfulness element and defences which serve to exclude fault. Grounds of justification may be described as circumstances which occur typically or regularly in practice, and which indicate conclusively that interference with a person's legally protected interests is reasonable and therefore lawful. They are practical examples of circumstances justifying a prima fade infringement of a recognised right or interest, according to the fundamental criterion of reasonableness. They are another expression of the legal convictions of the society.

Consent to injury, or Volenti non fit injuria, is a full defence; if successful, there is no delict. As a general defence, it can take two forms:

1. consent to a specific harmful act of the defendant; and
2. assumption of the risk of harm connected with the activity of the defendant.

There are five requirements for the defence of consent:

1. capacity;
2. knowledge and appreciation of harm; and
3. consent, or free and voluntary assumption of risk. In addition,
4. the consent must not have been socially undesirable—not seduction, or murder for insurance purposes; and
5. the consent must not have been revoked.

Necessity is conduct directed at an innocent person as a result of duress or compulsion, or a threat by a third party or an outside force. Private defence (or self-defence) is conduct directed at the person responsible for the duress or compulsion or threat. There is, therefore, an important distinction between the two. In cases of necessity and private defence, the question is this: Under which circumstances would the legal convictions of the community consider it reasonable to inflict harm to prevent it? The test is objective. It requires a balancing of the parties' and of society's interests. The role of the person against whom the defensive conduct is directed is an important factor in determining whether defence or necessity is being pled. An act of necessity is calculated to avert harm by inflicting it on an innocent person, whereas an act of defence is always directed at a wrongdoer. A person acts in "private defence", and therefore lawfully, when he uses force to ward off an unlawful attack against his or someone else's property or person. A person acts in "self-defence" when he defends his own body against unlawful attack by someone else. One therefore cannot invoke the justification of self-defence when acting in the interests of another person, but it is possible to invoke the justification of private defence when acting in one's own interests. Conduct will be justified as an act in private defence or self-defence if it is

• lawful;
• directed against a wrongdoer; and
• for the protection of the actor's or a third party's interest, which is threatened or attacked by the wrongdoer.

The violence used in defence must not exceed what is reasonably necessary to avert the threatened danger:

• The attack must have constituted a real or imminent infringement of the defendant's rights.
• The attack must have been unlawful.
• The defensive conduct must have been directed at the attacker.
• The defence must have been necessary to protect the threatened interests.
• It must have been reasonable: An act of defence is justified only if it was reasonably necessary for the purpose of protecting the threatened or infringed interest.

An act of necessity may be described as lawful conduct directed against an innocent person for the purpose of protecting an interest of the actor or of a third party (including the innocent person) against a dangerous situation, which may have arisen owing to the wrongful conduct of another or the behaviour of an animal, or through natural forces. Two types of emergency situations may be found:

1. those caused by humans; and
2. those caused by natural forces.

Other jurisdictions

China

History

Civil and criminal law were not clearly delineated in Ancient Chinese law as they are in modern legal systems. Therefore, while Tort Law was not a distinct area of law, concepts familiar to tort law were present in the criminal laws.^[74] However, by the late feudalism period, personal injury and property damage torts were mostly focused on compensation.^[75]

The earliest "tort case" known from Ancient China is from the Zhou dynasty. During a famine one person robbed another's barn by sending his slave to steal the grain. He was sued and the court ordered double the original grain restored to the victim to compensate the damages.^[76] The Qin Code made some changes to tort liabilities introducing the concept of subjective fault (fault liability). In a case where one person borrows farm equipment, compensation would be required for damage to the equipment if the damage is caused by the condition of the equipment when it was borrowed.^[76] In addition to fault liability, some defences were developed. A person would not be liable if public property were damaged by fire or other natural forces outside the person's control. There was no liability for killing livestock, if the livestock was about to hurt someone.^[76]

In contemporary China, however, there are four distinct legal systems in force, none of which are derived from classical Chinese law: Portuguese civil law in Macau, common law in Hong Kong, a German-style civil law system adopted by the Republic of China following Japan's model, and a primarily civil law system in the mainland.

Republic of China

In areas administered by the Republic of China,^[t] the legislative basis of tort law is the Civil Code of the Republic of China^[77] whose legal system was modelled after the Japanese Six Codes system, which itself was primarily based on the German pandectist approach to law.^[78] In general, article 184 provides that a person who "intentionally or negligently" damages another person's rights is required to compensate them for any resulting injury, and provides for strict liability where such harm is caused by the violation of a statutory provision aimed at protecting members of the community from harm.^[79] Additionally, tort liability exists for the owner of a defective building or structure where such building or structure causes damage,^[80] for the driver of an automobile that causes injury,^[81] and for individual's responsible for business activities that posed a risk of harm to the plaintiff.^[82] Tort liability in the Republic of China also extends to the violation of certain non-pecuniary interests under article 195 which provides for reasonable compensation in the case of damage to the body, health, reputation, liberty, credit, privacy, or chastity of another, or to another's personality in a severe way.^[83][u]

Mainland Chinaedit

In 2021, the mainland adopted the Civil Code of the People's Republic of China (CCPRC), Book Seven of which is titled "Tort Liability" and codifies a variety of torts, providing that an individual "who through his fault infringes upon another person's civil-law rights and interests shall bear tort liability".^[85] Book Seven outlines seven distinct categories of torts: Zdroj:https://en.wikipedia.org?pojem=Tortfeasor
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