The Historical Development of Law of Torts in England

SUBMITTED BY:SINDHU SAMBRANISEPTEMBER, 2013

Historical Development of Law of Torts in England

Introduction

Torts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an

injury or harm constituting the basis for a claim by the injured party. While some torts are also

crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the

damages incurred and deter others from committing the same harms. The injured person may sue

for an injunction to prevent the continuation of the tortious conduct or for monetary damages.1

The word tort has been derived from the Latin term ‘tortum’, which means to twist. It therefore,

includes that conduct which is not straight or lawful, but on the other hand, twisted, crooked or

unlawful.2 Tort is a civil,3 private4 wrong whereby the wrongdoer violates the rights of another

person in society, thereby violating the wrongdoer’s duty to respect the rights vested in every

member of the society.5

Originally, there was no distinction between various wrongs and there was no

compartmentalisaion like crime, tort or breach of contract etc. Various writs governed the

position. In the fourteenth century, under Common Law, the success of an action depended

wholly on the availability of a writ. The law was Ubi remedium ibi jus (where there is a remedy

there is a right) The plaintiff had to choose from a list of writs, the right writ that fits his/her

cause of action. If a writ did not pertain to a particular right, the right was not recognized. The

procedural system was incredibly rigid for some 500 years. In 1832 and 1833, some amendments

were made, and ultimately in 1852, Common Law Procedure Act was passed whereby the writs

were abolished. Judicature Act, 1873 further provided that the pleading was to contain only a

statement of the summary of the facts of the case. Now the law has become Ubi jus ibi remedium

1 Legal Information Institute, Cornell law School, Tort, http://www.law.cornell.edu/wex/tort, Last visited on 4/3/20132 R.K. Bangia, Law of Torts, (9th ed.1986), p.63 ibid4 B.M. Gandhi, Law of Torts, (2nd ed.2002), p.35 See generally: R.K. Bangia, Law of Torts, (9th ed.1986), p.6

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(where there is a right there is a remedy). The creation of new torts from time to time shows the

flexibility and justice of the Common Law Courts of England.6

In this paper, you will find a brief introduction of Tort Law or Tortious liability; the paper will

discuss the history and development of Tort Law in England not in general, but with specific

reference to three torts- Trespass (to land), Negligence, and Defamation. The tort of Trespass has

an ancient history, and was one of the first torts to be recognized. I will trace it from its origin.

Under Negligence, I will be dealing with its recognized elements as of today, and how these

elements developed (majorly through case laws). The tort of defamation will be divided into

slander and libel, and their individual development under various courts shall be examined. All

three Torts have been developed through Common Law in England, and thus have a dynamic

past and a stable present.

Tort of Trespass to Land

Trespass to land means interference with the possession of land without lawful justification. In

trespass, the interference with the possession is direct and through some tangible object. If the

interference is not direct but consequential, the wrong may be a nuisance.7 To throw stones upon

one’s neighbour’s premises is a wrong of trespass; to allow a stone from a ruinous chimney to

fall upon those premises is the wrong of nuisance. 8

Trespass could be committed either by a person himself entering the land of another person or

doing the same through some material object e.g., throwing of stones on another person’s land

driving nails into the wall, placing ladder against the wall or leaving debris upon the roof. It is

however no trespass when there is no interference with the possession and the defendant has

been merely deprived of certain facilities like gas and electricity.9

6 R.K. Bangia, Law of Torts, (9th ed.1986), p.17 R.K. Bangia, Law of Torts, (9th ed.1986), p.3878 Salmond on Torts, (14th ed.), p.729 R.K. Bangia, Law of Torts, (9th ed.1986), p.387

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Going beyond the purpose for which a person has entered certain premises or crossing the

boundary where he has the authority to go, amount to trespass. Thus, if a person, who is allowed

to sit in a drawing room, enters the bed room without any justification, the entry into the bed

room is a trespass.

Trespass is a wrong against possession rather than ownership. Therefore, a person in actual

possession can bring an action even though, as against the true owner, his possession was

wrongful.10

Originally, since most torts were also regarded as criminal actions, the defendant typically was

punished by the King according to the criminal laws. In time, however, the King also began to

allow individual victims of the defendant's tortious (i.e., criminal) conduct to sue for their own

personal damages as well.11 The writ of trespass was developed before 1250 as a sort of civil

version of the felony for this purpose. 12Actually, those actions based upon trespass were divided

into several sub-categories, each with its own separate writ associated with particular types of

misconduct. Trespass de bonis asportatis was used for damages to the plaintiff's goods which

had been "carried away" by the defendant. Trespass quare clausum fregit was used in cases

where the defendant physically intruded onto the plaintiff's land by "breaking the imaginary

close" that represented the boundary line which surrounded the property ( relevant in the case of

writ of trespass to land). Finally, trespass vi et armis was used for those other Tort actions

whereby the plaintiff suffered injury to person or property by virtue of the defendant's direct and

forceful misconduct.

What the writs of trespass had in common was that they involved forcible, or at least intentional,

action that directly resulted in injury. Lawyers tried to fit their cases into one of these writs since,

if they could not, they had no case. While courts allowed some flexibility in their use, the basics

had always to apply: direct harm; forcibly caused. So, when a landholder chopped down a tree

and it landed on his neighbour, that could be squeezed into a trespass writ; but where the tree

10 Ibid. at p.38811 Prof. Edward C. Martin, The English Common Law Writ System, http://netlaw.samford.edu/Martin/torts1/writhistory.htm, Last visited on 16/3/2013 12 Trespass: The Origin of Everything, http://www.slesher.com/trespass.html, Last visited on 16/3/2013

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landed on the road and a passerby stumbled over it after dark, there was no direct injury and

therefore no trespass.

To correct this problem a statute of 1285 allowed writs of trespass to be issued in consimili casu,

"in similar cases." Non-specific writs of trespass could now be obtained if the fact situation were

similar to those covered by traditional writs (as those had come to be interpreted by the courts)

even if the injuries were not direct. A trespass in consimili casu was referred to as “trespass on

the case” or simply “case.” The freedom of action allowed by actions on the case was not quickly

taken advantage of and it is not until Edward III’s reign (1327-1377) that we begin to see

significant numbers of writs called “trespass” that cannot fit the traditional definitions.13

Even so, this "new" writ remained distinguishable from the original trespass writ in two very

important particulars: (1) it was only available for indirect (as opposed to direct) injuries; and (2)

the plaintiff was required to prove some actual harm (as opposed to merely presuming harm from

the fact of the tortious invasion itself).14

Even though today the common law no longer recognizes these early English writs, their impact

on the individual Tort causes of action which subsequently evolved from these two early trespass

writs is nonetheless quite profound. Among our modern Tort causes of action, five specific

Intentional Tort actions can be traced directly back to the common law writ of trespass.

Interestingly, these Torts (Assault, Battery, False Imprisonment, Trespass to Land and Trespass

to Chattels) are the only Torts which still to this day do not require some type of proof of injury

in order to be actionable. Moreover, they are also the only intentional Torts in which the requisite

intent can be transferred from one to another. Indeed, each of these Torts can be established

merely upon the most "technical" showing of an intentional act (i.e., an intent "to do the act").

Most other modern Intentional Tort causes of action require at least some kind of specific intent

(i.e., intent to cause emotional distress; an intent to defame; etc), as well as proof of some actual

13 Prof. Edward C. Martin, The English Common Law Writ System, http://netlaw.samford.edu/Martin/torts1/writhistory.htm, Last visited on 16/3/201314 Writ of Trespass on the Case, http://legal-dictionary.thefreedictionary.com/Writ+of+trespass+on+the+case, Last visited on 16/3/2013

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harm to the plaintiff (as compared with merely presuming such harm). Indeed, the modern Tort

of "Negligence" has derived directly from the trespass on the case writ.15

Tort of Negligence

Negligence may mean a “mental” element in tortious liability or it may mean an independent

tort. In this paper, we are concerned with negligence as a tort in itself.16

The tort of negligence may be defined as a breach of duty or a failure of one party to exercise the

standard of care required by law, resulting in damage to the party to whom the duty was owed. 17

Thus we can note that the negligence of tort consists of three elements: (1) a legal duty on the

part of the defendant towards the plaintiff to exercise care in such conduct of the defendant as

falls within the scope of the duty; (2) breach of that duty, i.e., failure to come up to the “standard

of care” required by law; and (3) consequential damage to the plaintiff which can be attributed to

the defendant’s conduct.18

The modern concept of negligence and the three elements therein were only developed after

1932, through the case of Donoghue v. Stevenson19, as the duty of care was not a concept that

was recognized prior to this case. The aforementioned case shall be dealt with later on in this

paper.20

Although the modern concept didn’t exist, negligence existed in different forms in the past.

Some eight hundred (800) years ago, there existed in common law very little or no concern by

the state regarding individuals and their interactions.21

15 Prof. Edward C. Martin, The English Common Law Writ System, http://netlaw.samford.edu/Martin/torts1/writhistory.htm, Last visited on 16/3/2013

16 W.V.H. Rogers, Winfield and Jolowicz on Tort, (17th ed.2006), p.13217 Ibid.18 Ibid.19 (1932) AC 562 H. L.20 Ibid at p.15721 UBC Law Students, History of the law of Torts and Negligence, www.ubclss.org/CANs/semester%202%20notes.doc, Last visited on 15/3/2013

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In the fourteenth century, the monarchy began to take an interest in individual interactions. The

Law of Torts saw its rise with the introduction on the Tort of Trespass. However, a party wanting

to bring an action for trespass had to follow strict forms- their trespass must fit a writ.

In the fifteenth century, the concept of “actions on the case” developed in response to the

narrowness of the writ system. This brought about some sense of justice as it broadened the

scope of a plaintiff’s claims, and later, it developed into the form of nuisance, some other torts,

and negligence.

This early negligence only applied to certain cases such as apothecaries, doctors/surgeons, and

other people who served the public in a professional capacity, and for whom there was a general

accepted standard of appropriate conduct. They had a duty of care to the public, unlike private

individuals at that time.

In the latter half of the eighteenth century, negligence developed in a way that they could be

indirect, as opposed to the directness required by the trespass torts. Trespass torts required the

direct action of an individual to interfere with another’s ownership of their rightful property,

such as in the case of Scott v. Sheppard.22  ‘Duty’ was first put forward as a unifying concept in

the law of tort in Buller’s Nisi Prius (‘An Institute of the Law elative to Trials at Nisi Prius’),

published in 1768, in which it was suggested that:23

“Every man ought to take reasonable care that he does not injure his neighbour; therefore,

wherever a man receives hurt through the default of another, though the same were not wilful,

yet if it be occasioned by negligence or folly the law gives him an action to recover for the injury

so sustained. . . . However, it is proper in such cases to prove that the injury was such as would

probably follow from the act done.”24

In the 1800s, instead of focusing on causation, courts began to see fault as most important for

actions on the case. With this shift in focus, it became less necessary to restrict actions to the pre-

set categories. There was an attempt to develop a more general theory/principled approach to

negligence. However, this century saw some cases where a plaintiff’s claim against a private 22 Ibid.23 Negligence, http://bookshop.blackwell.co.uk/extracts/9780199211364_lunney.pdf, Last visited on 15/3/201324 Ibid.

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individual under the tort of negligence failed in court, simply because the courts seemed afraid of

the repercussions of letting a third party, not a party to a contract, sue for damages.25

The question of whether a plaintiff who was not party to the initial contract of sale or supply

should be able to claim the benefit of the warranty given thereunder by the manufacturer or

supplier came up, and this was addressed through certain cases such as Heaven v. Pender26 and

Winterbottom v. Wright .27

The plaintiff entered into a contract with the Postmaster General to drive a mail coach. The

coach had been supplied to the Postmaster General by the defendant under a contract which

provided that during the term of the contract, the coach was to be kept in a fit, proper, safe and

secure state. The plaintiff alleged that the defendant “negligently conducted himself, and so

utterly disregarded his aforesaid contract and so wholly neglected and failed to perform him

duty in this behalf,” that the plaintiff was injured when the coach collapsed, throwing him off his

seat.

This plaint lapsed in court. Lord Abinger C. B., in his judgement, commented saying that there

was no privity of contract between the plaintiff and defendant, and if the plaintiff could sue, then

any passenger, or any person on the road who was hurt by this mishap could bring a similar

action. He said that unless they confined the operation of such contracts, to the parties who

entered into them, “the most absurd and outrageous consequences, to which [he could] see no

limit, would ensue…” He continues to say that there are certain classes of contracts that can be

turned into torts, but only in cases where a public duty has been undertaken, or a public nuisance

committed. In cases other than what is mentioned above, the actions available must be restricted

to parties to a contract.28

25 UBC Law Students, History of the law of Torts and Negligence, www.ubclss.org/CANs/semester%202%20notes.doc, Last visited on 15/3/201326 (1883) 11 QBD 50327 (1842) 10 M & W 10928 See generally: Negligence, http://bookshop.blackwell.co.uk/extracts/9780199211364_lunney.pdf, Last visited on 15/3/2013

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The notion that liability in negligence was based on the existence of a duty owed by the

defendant to the claimant was slow to take hold but by the early part of the nineteenth century it

was said that the plaintiff had the right to compensation or damages for ‘the negligent or wilful

conduct of the party sued, in doing or omitting something contrary to the duty which the law

casts on him in the particular case.’ This, however, still left the question, of when the law casts

such a duty on the defendant, unanswered.29

The case of Donoghue v. Stevenson was instrumental in answering this question, and in the

advent of ‘duty of care’ as recognized in the modern context.

The facts of Donoghue v. Stevenson were as follows: Friend of Donoghue (P) purchased a dark,

opaque bottle of ginger-beer and gave it to P. P drank some ginger beer, and poured some over

her ice-cream, before her friend discovered a decomposed snail in the bottle. P sued the

manufacturer for psychological harm (shock) and gastroenteritis (stomach flu).30

Her claim was successful. This case established the modern law of negligence and established

the neighbour test.31

Atkins J set up prima facie duty of care based on the neighbourhood principle. In his

judgement he said:

"The rule that you are to love your neighbour becomes in law you must not injure your

neighbour; and the lawyer's question "Who is my neighbour?" receives a restricted reply. You

must take reasonable care to avoid acts or omissions which you can reasonably foresee would be

likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be

persons who are so closely and directly affected by my act that I ought reasonably to have them

29 ibid30 M’Alister (Donoghue) v. Stevenson: http://casebrief.me/casebriefs/malister-donoghue-v-stevenson/, Last visited on 17/3/201331 Donoghue v. Stevenson, http://www.e-lawresources.co.uk/Donoghue-v-Stevenson.php, Last visited on 17/3/2013

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in contemplation as being so affected when I am directing my mind to the acts or omissions

which are called in question" 32

Another important case in the development of the tort of negligence is Hedley Byrne v. Heller &

Partners33

Hedley Byrne was an advertising company that asked its banker for a report on the financial

position of one of its clients, whom it was doing work on credit for. Hedley’s banker asked the

client’s banker (Heller) for a report. Crucially, there was no contractual relationship between

Hedley Byrne and Heller.

Heller provided a report that was stated to be given “without responsibility” to Hedley’s bankers

and showed the client to be in a strong financial position. Hedley’s bankers sent the report to

Hedley, which relied on the contents and continued to provide services on credit. The client went

into liquidation and Hedley sued Heller for its negligent report. 

In a landmark judgment, the House of Lords held that, in the absence of the “without

responsibility” disclaimer, Hedley would have had a successful claim. Their Lordships ruled the

law imposes a duty of care on an advisor with specialist skill and knowledge who knows or

ought to know that his or her special skill is being relied on, even if he or she is not in a contract

with the person relying on the information.34

As one may have noticed, the duty of care is the main principle on which the tort of negligence is

based, and the two aforementioned cases had an important impact in determining the situations

in which this duty of care exists. The second principle, though less important, is to what extent

this duty of care exists, i.e., the standard of care. This element has been elucidated in certain

cases and through certain texts.

Standard of care:

32 (1932) AC 562 at p 580.33(1964), AC 465 H. L.34 Arthur Wardhaugh, Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964), http://www.supplymanagement.com/law/court-reports/2011/hedley-byrne-co-ltd-v-heller-partners-ltd-1964/, Last visited on 17/3/2013

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Generally, the expected standard of care is that the reasonable person is equipped with the same

skills and expertise as others in similar situation, which in essence is indifferent to each situation

(Blay etc. 2008). The decision in case Cook v. Cook [1986] showed a different standard of care

applied in an inexperienced person. Further, the standard of care gives way to standard of

children of the relevant age and experience, which has been shown in the case Waverley Council

v. Ferreira [1966] that the standard of care was that of a 12-year-old child.35

Thus one may conclude that different standards of care are expected of different people in

varying circumstances, but the general rule is that of the average person, or a man on the red

omnibus.

Although a new tort in its current sense, the Tort of negligence has become an important tort, as

it forms one of the three kinds of torts, namely, (i) intentional torts, (ii) negligence and (iii) strict

liability torts, actionable in a court of law. 36

Tort of Defamation

Defamation is the publication of a statement which reflects on a person’s reputation and tends to

lower him in the estimation of right-thinking members of society generally or tends to make

them shun or avoid him.37

By 1882, it was established that even an innuendo can be defamatory. A statement could

sometimes be innocent prima facie but because of some latent or secondary meaning it may be

considered to be defamatory.38 In Capital and Counties Bank v. Henty and Sons,39 we saw that

where there are a number of possible explanations, it is not reasonable to pick on the one that is

defamatory of the claimant. Thus, a statement would be deemed defamatory through innuendo

35See general: Negligence, http://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts03.htm, Last visited on 16/3/201336 Types of Torts, http://torts.uslegal.com/types-of-torts/, Last visited on 16/3/201337 W.H.V. Rogers, Winfield and Jolowicz on Tort, (17th ed. 2002), p.51538 R.K. Bangia, Law of Torts, (9th ed.1986), p.19539 (1882) 7 A. C. p.741

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only if a reasonable person would infer that particular defamatory explanation as opposed to any

other innocent explanation.40

Slander and Libel:

English law divides actions for defamation into Slander and Libel.41

Slander:

In common with most of the Germanic systems, prior to the 11th century, Anglo-Saxon law was

particularly concerned with insulting words addressed by one person to another. This was an

offence which it punished with severity, sometimes with the excision of the tongue. Bot and wite

were due for certain terms of abuse before the Norman Conquest(1066 A.D.), and long after the

Conquest local courts frequently entertained cases of insult; such jurisdiction was naturally left

to the local courts, for they alone could secure amends (fines or humiliating confessions) before

the same community that had witnessed the affront. 42

Gradually it becomes apparent that local courts are giving remedy for words which are not

merely insults addressed to the plaintiff, but rather statements to his prejudice addressed to other

persons. The remedy also takes the form of a civil action for damages rather than that of a

criminal prosecution for a petty misdemeanor. There exists an interesting case in 1333 where the

county court of Bedford tried an action in which the plaintiff alleged that the defendant called

him a false and faithless fellow, whereby he was prevented from raising a loan which was being

negotiated.43

Up until 1275, for serious matters of slander, the church was the most practicable jurisdiction.44

The King’s Courts didn’t take up matters of defamation and admitted that the Church had

unfettered authority on this matter. But the King, like other lords, could not stand by while

someone was saying that “there is no justice in the lord’s court”, nor could he tolerate similar

statements about his principal officers. Thus, in 1275, we see the beginning of a statute called

40 See general: W.V.H Rogers, Winfield and Jolowicz on Tort, (17th ed. 2002), p.52641 R.K. Bangia Law of Torts (9th ed.1986), p.18942 Mary Batesson, Borough Customs (Selden Society), p.7843 Text and translation in Plucknett, The County Court, Harvard Law Review, XLII., p.66844Theodore Frank Thomas Plucknett, A Concise History of the Common Law (1956), http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2458&chapter=243142&layout=html&Itemid=27, Last visited on 14/3/2013

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scandalum magnatum, the slander of magnates. This statute enacted that one who publishes false

news or scandal tending to produce discord between the King and his people or the magnates

shall be kept in prison until he produces in court the originator of the tale. This dealt particularly

with political statements, and defendants were prosecuted under the King’s Court.45

Down till the 17th century, the Common Law courts dealt only with civil remedies and awarding

damages, as the ecclesiastical courts and Star Chamber, which monopolized criminal procedures,

provided the Common Law courts no room for criminal proceedings. However in 1641, with the

lapse of the Star Chamber, the Common Law courts deemed slander as criminally actionable in

certain cases. Slanders actionable per se were originally (1) imputations of temporal crimes, but

by the close of this period, (2) reflections on fitness for office, skill in trade or profession, and (3)

imputations of certain diseases were added to the list.46

Much later, more than two centuries in the future, a fourth category was added to this list.

Slander is actionable in English courts if there is an (4) imputation of unchastity or adultery to

any woman or a girl, under the Slander of Women Act, 189147

Libel:

Libel is defamatory representation made in some permanent form, e.g., writing, printing, picture,

effigy or statue.48

Libel saw its origin in the statute of scandalum magnatum, 1275 when Edward Coke was the

Attorney-General of the Star Chamber. Libel, as even of today, was treated as a tort as well as a

crime, while slander was merely a tort. We could see this as the Common Law courts gave a civil

action for damages on scandalum magnatum, but the Star Chamber concentrated mainly on the

crime, while preserving the principles and name of the statute and borrowing influences from

Roman law, thus giving rise to the crime of libel.49

45 Ibid.46 See in general: Ibid.47 R. K. Bangia, Law of Torts (9th ed.1986), p.19048 Ibid. at p.18949 Theodore Frank Thomas Plucknett, A Concise History of the Common Law (1956), http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2458&chapter=243142&layout=html&Itemid=27, Last visited on 14/3/2013

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In the 17th century, more specifically in 1641, the Star Chamber collapsed, and consequently

there was confusion for twenty years as to the remaining courts’ jurisdiction. Later however, it

was concluded that the Court of King’s Bench succeeded to as much of the Star Chamber’s

jurisdiction as was consistent with the then constitutional thought. Consequently the Star

Chamber’s law of libel was henceforth to be administered by the same court as had developed

the common law of slander; inevitably the two bodies of law were bound to influence each other,

and tended to become more coherently combined into something approaching a systematic law

of defamation.50

In the 16th century, once printing became cost effective and rampant across Europe, a long line of

proclamations and statutes came up to deal with the new menace that came with press printing.

According to one enactment, printing might constitute a statutory treason,51 and succeeding

statutes settled a policy of treating printing as an overt action of treason.52 Still more numerous

were the proclamations which regulated the book trade. As early as 1538 a proclamation required

a licence from the Privy Council or a bishop before any English book could be printed,53 and for

a century and a half there is a steady stream of proclamations directed against unlicensed

printing, and heretical and seditious literature. The system of licensing plays was regulated by

proclamation54 in 1661, although it was in fact a century old by this time, and many statutes from

1543 onwards punished profane interludes and plays. Statutory in its origin, the control of the

stage was finally appropriated as part of the prerogative after the Restoration. A proclamation of

1668 tried to prevent the hawking of newspapers in the streets,55and in 1688 the peddling of

books was forbidden,56 after a vain attempt to license the peddlers.

Until the 20th century, Libel was known to be only in the form of things one could “see”, and

slander dealt with defamatory actions that one could “hear”. However, in Youssoupoff v. M. G.

M. Pictures Ltd.(1934),57 it was established that even the speech that synchronizes with the

photographic part of a cinema film is also considered to be libel.58 Slesser L. J. observed:50 Ibid.51Tanner, Tudor Constitutional Documents, p.38652 (1547) Edw. VI, c. 12, s. 6 53 Steele, Tudor and Stuart Proclamations, p.17654 ibid., p.331655 Steele, op. cit., p. 351656 ibid., p. 385957 (1934) 50 T. L. R., p.58158 R.K. Bangia, Law of Torts (9th ed.1986), p.189

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“There can be no doubt that, so far as the photographic part of the exhibition is concerned, that is

a permanent matter to be seen by the eye, and is the proper subject of an action for libel, if

defamatory. I regard the speech which is synchronized with the photographic reproduction and

forms part of one complex, common exhibition as an ancillary circumstance, part of the

surroundings explaining that which is to be seen.”59

The Defamation Act, 1952 provides that broadcasting of words by means of wireless telegraphy

shall be treated as publication in permanent form and thus may be a proper subject of an action

for libel.60

These are the developments of slander and libel in England till date. There is still no clear

consensus on the difference between slander and libel, as some like to include permanent

auditory information as libel61, while others such as Winfield still feel it is slander.62 Hopefully in

the coming years, through more judgments and statutes, a uniform opinion on defamation and the

two elements shall arise.

Conclusion

We have seen how Tort law has evolved over more than 800 years, and what an important place

it holds in our lives today. In the landscape of legal instruments, Tort Law is but a minute speck,

yet, it is momentous, as without it, a lack of protection of rights would exist. Tort law protects

every private individual’s rights from another’s encroachment into it. Tort law acts as a security

blanket in the legal context today. Although it had not been codified, Tort law is still practiced in

the civil jurisdiction of most Common Law countries today. It continues to evolve, with the

advent of upcoming Torts such as Tort of Cyber trespass, which shows that Common Law is not

fixed, but flexible and adapts to changing times. Whether Tort Law is more important than

Criminal Law or other forms of Civil Law is an indiscernible answer, but we do however know

that each is required to protect individuals from various harms in society. Tort Law arose out of

necessity, as necessity is the mother of all inventions, and this invention has evolved so as to

59 (1934) 50 T. L. R., p.58760 R.K. Bangia, Law of Torts, (9th ed.1986), p.18961 Salmond, Torts, (17th ed.), p.13962 R.K. Bangia, Law of Torts, (9th ed.1986), p.190

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almost become unrecognizable from its original form today. Yet it retains the essential, original

character and principles for which it was created and valued in the first place.

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