The Aims of the Law of Tort.

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Essay by: M. Shahbaz Hassan

Student Number: HAS03238400

Course: F/T CPE (Legal Studies)

“An intelligent approach to the study of law must take account of its purpose, and must be prepared to test the critically in the light of its purpose. The question that I shall propound is the end or social function or raison d’etre of the law of tort, and particularly of the action in tort for damages. It is commonly said that the civil action for damages aims at compensation, as opposed to the criminal prosecution which aims at punishment. This however, does not look below the surface of things. Granted that the immediate object of the tort action is to compensate the plaintiff at the expense of the tortfeasor, but why do we wish to do this ? Is it to restore the status quo ante, but if so, why do we want to restore the status quo ante ? And could we not restore this status quo ante in some other and better way, for instance by a system of national insurance ? Or is it really that we want to deter people from committing torts ? Or, again, is it that the payment of compensation is regarded as educational, or as a kind of expiation of a wrong ?”

Glanville Williams “The Aims of the Law of Tort” [1951] CLP 137


The law of Tort does not lend itself to a simple definition. Generally, criminal law is the action of the state to punish the individual. A straightforward description is that a tort is a ‘wrong’. The law of tort protects certain interests of the individual. If those interests are affected in anyway a tort action can be pursued under civil law. It is primarily concerned with providing a remedy to the individual who has been wrongfully harmed by the conduct of another or others who have disregarded their obligations imposed upon them by law. A critical analysis of Tort law will therefore require an understanding of the reasons for tort law, the obligations upon all citizens imposed by law and of the compensation and other remedies that are provided for harms caused by breach of such obligations.

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In brief, the historical origins of the law of tort appear to have developed from the common law of obligations. The origin of obligations as a category of law lies in Roman law. In the sixteenth century there was no clear concept of tort or contract although general concepts were present. Eighteenth century lawyers came to distinguish between direct or forcible injury (trespass) and indirect or consequential injury (case). In Williams v Holland the court recognised an overlap between trespass and case. The English writ system prevented the development of categories of law such as contract or tort until the ...

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