To clarify, there are other respected sources which offer their views on what Tort actually is, such as Lord Denning, a controversial character within the legal system. He offers the view “...the province of tort is to allocate responsibility for injurious conduct.” As highlighted earlier it is hard to define Tort, the main aspect that legal specialists do agree on, is that Tort does contain some element of damage or harm which occurs from an omission or an act itself. The overlapping nature or Tort is a major focal point in determining what holds it together and whether it is necessary. Crime holds the strongest link with Tort as both the branches were once one form of law. The debate continues as to whether it is actually separate as they do both cover wrong doings in regards to people and their property. The fundamental differences are that Tort cases are brought before the civil court whereas criminal procedures go through criminal courts, I.E: Magistrates and Crown Court. The main overlap occurs when dealing with assault and battery as they can be either Tortious or Criminal. The traditional standpoint of the English Legal System is that Tort is put in place to compensate (As illustrated in Cassell V Broome [1972] AC 1027.) Restraining orders (otherwise injunctions) are an additional feature which can be used as a deterrent. The contrasting elements of Contract and Tort are a bit more complicated. The essential understanding can be the same as one incident could lead to proceedings under either Tort or Contract. Under contractual duty the aim is to take ‘reasonable care’ and ‘contractual carelessness’ can blend into the Tort of negligence, as the elements which lead to this are along the same lines. The differences are very wide, one of them being that in the law of Tort, the duty is more of a general nature rather than to a specific person, which it is in Contract. The second being that in Tort the duties owed are fixed mainly by the law and with Contracts they are fixed by the persons involved in the Contract.
Tort is very complex, there are different types of torts which could easily be regarded as areas of law on their own. Negligence, trespass, nuisance or injury could theoretically stand as areas of law. This was the view of ‘Lord Salmond’ it was a very stringent and in-flexible. He stated: “It is a civil wrong for which the remedy is a Common Law action for unliquidated Damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation” Salmond stated that any new cases which came before the courts would be applied to the existing headings by expanding them. This contrasted Winfield, which is known as the ‘Open chain’ link, he advocated the formulation of new heads of liability when the need arises, Winfield believed in the flexibility of the Law.
Furthermore, directly looking at the question, there are a number of factors that bind together Tort. Although there are many types of Tort, they all have the same main objectives and it is to protect the interests of the citizens and provide them with compensation. First of all, torts protect the same interests. All Torts have been created to provide the citizens with a degree of personal security, protect their reputation, property and their right to live free from annoyance. All Torts have a deterrent effect, designed to prevent committing an offence under a Tort in the future. The body of law called tort also aims at fair distribution of loss. According to Lord Denning: “The risk should be borne by the whole community (…) which enjoys the benefits of industrialization rather than rest on one pair of shoulders”. Tort protects other interests such as commercial interest, personal freedom and title to property. Additionally, most of the Torts include a need for damage. Although there are exceptions which are: ‘Damnum sine injuria’ and ‘Injuria sine damno.’ It is a general rule that in order to bring a claim in Tort “the claimant must first show that the defendant’s conduct ‘caused’ the damage and that the damage was not too remote”
To conclude, Tort is a very complex area of law. It covers different types of torts that could act as separate areas of law. Tort also overlaps with other areas such as criminal law or contract law. Because of this, Tort is a very difficult concept to define. It is also put across by some legal professionals that it should be split into smaller areas in order to be clearer. There are a number of factors that hold Tort together. Most importantly the interests it protects and the objectives. Furthermore, clear differences between tort and other areas of law are visible and give clear evidence that tort should remain an integral body of law as it is.
Bibliography:
Hard Sources:
Harlow, Carol. Understanding Tort Law.
John Lewthwaite, John, and John Hodgson. Tort Law. 2nd ed.
McBride, Nicholas McBride J., and Roderick Bagshaw. Tort Law. 2nd ed.
Ramlogan, Rajendra, and Natalie Persadie. Commonwealth Caribbean Business Law
Online Sources:
6 Nov. 2008 <http://www.legalserviceindia.com/articles/etea.htm>.
10 Nov. 2008 <http://lexisnexis.co.uk>.
12 Nov. 2008 <http://http://dictionary.lp.findlaw.com/dictionary.html>.
Ramlogan, Rajendra, and Natalie Persadie. Commonwealth Caribbean Business Law. 189-89.
John Lewthwaite, John, and John Hodgson. Tort Law. 2nd ed. Xlvii.
www.legalserviceindia.com/articles/etea.htm
John Lewthwaite, John, and John Hodgson. Tort Law. 2nd ed.
John Lewthwaite, John, and John Hodgson. Tort Law. 2nd ed. I
