Torts and Damages

Historical Evolution, Part II – In (English) Common Law

1. English Legal History

1.1 The Anglo-Saxon Period – Early Invasions and Conquests

Celtic Invasions
Bronze and Iron Ages Celtic customs had spread throughout England but had no identifiable legacy in later
legal or
political institutions
Roman Conquest
55-54 BC Invaded by Julius Cesar; England became a province of the Roman Empire for over 3oo yrs;
Roman Law
vanished from Britain when the Romans left; what few vestiges of Roman Law embodied in English Law
were not derived from the period of Roman occupation
Teutonic Tribes

From Angeln, South Denmark

Angles

Saxons From Weser and Elbe

Jutes
From Juteland

 5th-6th centuries
 These 3 tribes came to be known as the “English”
 Early Teutonic Institutions – of particular importance in the molding of Anglo-Saxon society

o Territorial Division: groups of tribal communities formed a pagus (district) and groups of pagi (pl.) formed civitas (state)
o Social Divisions:
 King/nobility (not all of the tribes)
 Freemen – owned tribal lands
 Cultivators (of the soil) – held lands under the freemen; possessed no political rights
 Slaves

Danish/Viking Invasions
Protracted Viking raids took place between 835-865; but by 1042, the English re-conquered England;
Danish
Customary Laws heavily influenced English customs in some areas

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Of Anglo-Saxon Society…
 “Anglo-Saxon” is referenced to that period of English history prior to the Norman Conquest (597- 1100)
 Separate kingdoms established by the Teutonic tribes were unified by King Alfred in c. 886
 Anglo-Saxon Institutions (Cf. “Early Teutonic Institutions” above)

o Territorial Divisions
 Township or Vill – smallest territorial division; each vill is headed by reeve (deputy of
an ealdorman); possessed an assembly of the freemen known as the gemot
 The Hundred – group of adjoining townships; consisted of an area taxed at 100 hides
or that the unit consisted of 100 fighting men of the national defense; chief of the
hundred was known as the hundredsealdor; each hundred also has its own assembly
called the hundred-gemot assembled once a month
 The Shire – consisted of groups of hundreds; headed by an ealdorman (nobleman of
high rank) has its own assembly, the shire-moot which met regularly; shire authorities
had the responsibility of calling out the local militia at the king’s command
 o Social Divisions
 Slaves – possessed no rights; often traded; comprised of those reduced to slavery as
punishment or by voluntary sale (children over 13 yo can sell themselves as slaves) or
descendants of conquered enemies
 Serfs (Partial Freemen) – possessed some rights (e.g. marriage); in general, serfs are
slaves who had acquired some rights he was able to protect
 Common Freemen – had complete personal freedom; can own cattle on common
pastures; he was liable to attend local courts, pay taxes and render military service
 Nobility – status is achieved by birth or by service (performed duties for the king);
granted land in return for their services (ergo, possession of land = nobility)
 King – head of the nation; kingship is hereditary but the witenigamot (council of
elder/the wise) had the right to choose a king from male descendants of a recently
deceased king; had very close links with the church
 *The Witenagemot – council of wise men/meeting of the wise; equivalent to a
national assembly; its composition depended on the will of the king; members include:
the king, princes, bishops, abbots and ealdormen; it could give advice to the king when
he asks for it; does not meet regularly; in some cases, it acted as the supreme court of
justice

o Land Holding
 land was cultivated by its inhabitants;
 individual households are allowed to occupy/cultivate at least 1 hide (approx. 120 acres);
 transfer and inheritance of landholdings depended on family and township customs
 no general theory of tenure but property of land are properly classified (i.e. the largest
estates, devisable and alienable, were appropriated only to noblemen and the church by
express grant of the king while other classes of lands were inalienable but open for lease)
 **these practices on landholding have immense influences in later developments re:
feudalism, the principle of commendation and ultimately on the resultant social
hierarchy of England

o Laws and Courts

 Anglo-Saxon law came down principally in the form of dooms (royal proclamations of
existing law or announcement of new law)
 However, Anglo-Saxon lawmakers never established a systematic and comprehensive
code of laws, nor were there any coherent general theory of law
 Law was made up in large part of customary rules + dooms which were often local than
national in operation and based largely on oral tradition
 Consolidation of the old Teutonic kingdoms helped abolish the “folkright” (rules, tribal
in origin, which expressed the “judicial consciousness” of the people); the powers and
grants of the king weakened, nay, destroyed the folkright
 The “King’s Peace” – every freeman has his “peace,” but it is derived from the king’s
peace which must be respected everywhere. Acts of violence are breaches of such a
“peace” and, hence, must be punished  this concept in criminal and civil adjudication
bears immense influence to later developments in the maintenance of public order

1.2 Period of the Norman Conquest

 William (Duke of Normandy), with the support of the Papacy, invaded England in 1066
 He was crowned on Christmas day 1066 as “King of the English” – his conquest is considered a decisive
turning point in English history
 ***Normans are from the northern parts of England which have been heavily influenced by the Danish
 Effects of William’s Conquest:
o Confirmation of existing English laws
o William, however, established the feudal system
o Land was considered as held by the king
o Systematization of English customary law  upon which the massive fabric of common law
was constructed
 o Framework of a strong centralized government + development of national unity
o Place of royal power in the legal system was emphasized

 Feudalism – an organization of society characterized by the following:

o Social hierarchy dominated by a chief (king), and great tenants-in-chief who held the former’s
land
o Relationship between tenants-in-chief/(land)lords and those who held lands for them (vassals)
based on mutual promises of protection and military service
o Tenure of land was accompanied by private rights exercised by the lords over his inferiors, to the
exclusion of the king (local jurisdiction) – ergo, fealty was owed to the immediate superiors and
not to the sovereign
o The feudal economy of land was the kingdom’s main source of wealth

 William the Conqueror was succeeded by his son William II (notorious for oppressive rule and
extortionate taxes)
 Upon William II’s death, he was succeeded by Henry I, who was followed by Stephen (under whom the
country fell into anarchy)
 Stephen’s successor, Henry II, was a king of intense reforming energy, and was known to be the great
administrator and legislator
o Under Henry II, the power of the crown increased, government became more centralized
o The authority of local tribunals, feudal barons and the clergy declined significantly
o Common law developed! And the Writ System developed considerably, too!
o Trial by jury was established in some jurisdictions + judges of the royal court were made to
travelled by circuits to hear cases concerning the king’s peace everywhere
 Henry II was succeeded by his son Richard I, who was later succeeded by his brother John
o John was tyrannical and capricious
o Barons and councils of freemen revolted which forced him to sign The Great Charter of
Liberties
o The Charter is a statement of the freedoms and entitlements (pseudo-Bill of Rights) of the
church and all freemen of his kingdom on various matters (but based on the Feudal System) – in
effect, the crown’s power was restricted by the exercise of the freeman’s rights
 John was succeeded by Henry III
o Judge-made law, in the form of judicial declarations concerning the law, grew – ergo, common
law took shape!
o The parliament was summoned and developed
 Henry III was succeeded by Edward I
o Known as “the English Justinian”
o His reign saw the proliferation of legislation – the law came into its own
o Common law laid low
 Edward I was succeeded by his son Edward II, who himself was succeeded by Edward III
 Finally came Richard II
o The great revolt took place (1381)
o Foundation of constitutional law were strengthened (e.g. writ of habeas corpus)

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2. Torts in a Nutshell: Injuries to Persons and Property (E. Kionka)

“Tort law is a complex machine for shifting human losses. Like other complicated machinery… it is best
understood as the sum of its individual component parts. Efforts to change these parts to make them more
similar may only impair their individual performance.” – E. Kioka

2.1 Origins, Objectives and Overview of Tort Liability

o “Tort” is an elusive concept – there is no coherent, general principle of tort liability
 This is largely due to the fact that virtually all diverse forms of human activity may be a
source of “harm” and therefore possible sources of “tort liability”
  Also, common law (from which tort liability originated) developed only a system of
individually named torts (trespass, deceit, slander, assault and battery, etc) without
consolidating them, in some way, into broader articles of law
o Except for negligence, there has been little synthesis of disparate, nominate “torts” into larger
categories
o Tort law, as it spurred out in common law, developed a posteriori (i.e. inductively: from specific
cases to general principles of law), ergo, the diversity of tort actions available  this makes it not
susceptible to generalizations

“The one common element of all torts is that someone has sustained a loss or harm as the
result of some act or failure to act by another.”

Of Causation and Fault…

 Causation is the sine qua non  tort liability is only just if the tortfeasor’s conduct was a substantial
factor in bringing about the victim’s loss or harm
 Fault is usually a necessary element of the liability equation because, ethically, we find it hard to fault
another unless his conduct was somehow culpable
 Fault  conduct which creates an unreasonable or unacceptable risk of harm
 A common element of tort liability is fault – conduct which falls outside accepted community standards
of behavior
 Clearly, if one intentionally harms another, or that he knows (presumed) that his conduct creates a
substantial certainty of harm, liability naturally follows
 Motive (actual or inferred) can be an element of fault
 Fault also includes conduct where no harm was intended, but where an ordinary person should have
foreseen that such conduct created an unreasonable risk to others (recklessness and negligence); ergo,
fault may lie in merely creating an unnecessary or unreasonable risk, however unknowingly
 Contributory Fault  the tort award to a victim is reduced or even denied when he has consented to
encounter the risk or when his own fault contributed to his injury
 HOWEVER, various kinds of blameworthy conduct (with fault) that results to damage do not always
give rise to tort liability; fault without liability (e.g. causing harm to another in the performance of
a duty, exercise of a privilege or immunity)
 In the reverse, some conduct could be morally blameless (without fault) but the same still gives rise to
tort liability simply because the such conduct should bear the cost of the damage it created

Fault Substitutes
1. Economic Efficiency – where an activity creates harms, the costs of that harm should be made part of
the cost-price structure of that activity; relative capacity of parties to absorb or spread costs (insurance)
2. Vicarious Liability – where one is liable, in the absence of any fault on his part, for a tort committed by
another who is acting on his behalf or with his express or implied permission (employees, etc)
3. Economic Benefit – where a defendant’s conduct causes a direct pecuniary loss to a victim but there is
also a direct pecuniary gain to defendant

Of Law-Imposed Duties…
 Tort can be described as a “civil wrong” wherein one person’s conduct causes a compensable injury to
the person, property, or interest of another, in violation of a duty imposed by law
 HOWEVER, not all violations of legal duties are torts!
 Illustration: Breach of contract under the above definition becomes indistinguishable from a tort
because the binding effect of a contractual obligation is imposed by law. To exclude breach of contract
from tort, on the flipside, negates the fact that breach of contractual obligations under certain
circumstances can be a basis for tort liability!

2.2 Functions/Goals and Justifications of Tort Law

1) COMPENSATION
 The victim of a tortious conduct by another has sustained some injury/harm (hereafter called COSTS)
and at the heart of tort law is to relieve of said victim from such costs
 Tort law is predicated on the idea that all costs –whether tangible or not– can be measured by money
  In fact, tort remedy, almost exclusively, comes in the form of compelling the tortfeasor to pay his victim
the sum of all costs (compensatory damages)
 But, why compel another to compensate the victim for these costs when more efficient ways of
compensation (e.g. insurance) can instead be mandated?  Surely, it’s not prosaically to relieve the
victim of the burden of his costs. Rather, it is the pursuit of justice!

2) JUSTICE
 Includes the notions of fairness; fundamentally, justice is the application of overriding community
standards of fairness
 Where a risk is created by nature, the balance of fairness would dictate that it will not be just to let the
victim sustain her own losses; instead, the best (most just) way would be to relieve such a victim of the
risk by distributing the same to everyone (by insurance or governmental compensation)
 BUT, where (a) we can identify a particular person as responsible for creating the risk; (b) such risk is
not inconsequential (avoidable/foreseeable); and (c) the tortfeasor is theoretically capable of reducing,
nay, eliminating such risk and its consequences  the balance of fairness would tilt and now it becomes
just to impose the costs on the tortfeasor than to let it remain with the victim or be shared by the
community (ergo, tort liability)
 On contributory fault  prevailing notions of justice frown against reducing or denying tort awards to a
victim when he has contributory fault that resulted to the harm because the victim’s fault is only a
portion of the total loss-producing fault (it does not, at all times, negate/supersede the fault of others);
the more prudent approach is to compare all parties’ fault in the loss-producing event and reduce
damages in proportion to his own contributory fault

3) PREVENTION OF FUTURE COSTS (DETERRENCE)

 Adjunct of tort law’s purpose to regulate human behavior
 In theory, a tortfeasor who has been previously held liable for a tort (by way of punitive damages)
should be more careful in the future
 The threat of tort liability is an incentive to all to regulate their conduct in accordance with established
standards

4) OTHER JUSTIFICATIONS
 Vindication of the victim; deters personal retaliation or resort to violent self-help remedies for a
perceived wrong

2.3 Evolution of Tort Concepts and Remedies

 In English (Common) Law

o Originally, the law did not differentiate between Crime and Tort  when one causes
injury/harm to another, the remedy was a “private war” or feud in retaliation, the intention
being to cause an equivalent harm to the wrongdoer
o As government became more settled and centralized, the law began to intervene in these
disputes
o Some form of “trial” (by ordeal or oaths) was soon required instead of the private wars
o If plaintiff won, the defendant had to pay some fixed sum to the former and to the king
computed on the basis of the plaintiff’s value (or his property’s) and the nature of the injury; if
defendants could not pay, he would be punished
o Anglo-Saxon courts were tribal and applied only local customary laws
o After the Norman Conquest, royal courts (king’s courts) were created and took jurisdiction
over “specified wrongs” (primarily felonies which breach the king’s peace); local courts
continued to hear misdemeanors (petty/minor wrongs)
o Much later in English legal history, the king’s business was mainly accomplished by royal
writs, and this included judicial administration

 Writ System
o Primitive juridical writs contained mere commands to local courts to do justice between certain
parties so that the king will hear no further complaints about their dispute
 o Later, such writs became grants of jurisdiction to royal courts to adjudicate certain cases
o Gradually, a formal writ system evolved and it became necessary for a plaintiff to
purchase an appropriate writ from the king’s chancellor in order to commence
action
o Much later still, writs became crystallized in certain forms and contents,
corresponding to certain available actions  such that if a plaintiff could not fit his case
into the prescribed writs, he had no action at all
o In the 15th century, actions can be commenced by bill (complaint) instead of the royal writ but
plaintiff’s declaration still had to state a cause of action in the recognized form and content
provided in royal writs he could have availed of

 Trespass
o the most important personal civil action; plaintiff could recover damages even though he could
not prove actual damages
o it was used in a variety of cases where one person had harmed another
o the plaintiff can recover his actual damages, rather than a fixed scheme of compensation
o it was also quasi-criminal because a defeated defendant is usually imprisoned or fined
o the writ of trespass became immensely popular, there had been very few appeals to the king’s
court
o it provided remedy for a number of lesser harms before the royal courts, which previously could
only be addressed to the ineffective local courts
o three common writs under trespass
 trespass vi et armis (with force and arms) for assault and battery, and false
imprisonment
 trespass de bonis asportatis (taking of goods) for trespass to chattels
 trespass quare clausum fregit (breach of the “close”) for trespass to land

 CASE and other Later Writs

o there developed writs for wrongs which did not fit with the abovementioned  known as
trespass on the case or action on the case
o these were developed in flexible terms, but the plaintiff had to set forth the facts of his particular
case in considerable detail
o this later became a distinct writ of its own, apart from trespass known as CASE
o other writs later emerged as distinct writs on account of recurring CASE actions and crystallized
and separated into named actions having rules of their own
o CASE was the general form of action under which most other torts evolved
 Assumpsit  remedy for breach of contract/promise (to provide service with care and
skill but instead damaged the plaintiff or his property); gradually, this became as a
means of enforcing contracts in general, and later still, it ultimately became an
independent contract action although it can still be an alternative remedy for a tort
(particularly misfeasance as opposed to total failure to perform)
 Deceit  concerned abuses of legal procedure, i.e. fraud of the courts; later, as
assumpsit developed, it became a CASE action for breach of an express warranty (as the
law on sales became consolidated)
 Trover  developed as a remedy for conversion and damage to chattels in cases where
replevin or trespass de bonis asportatis did not apply or where these remedies were
inadequate
 Nuisance, defamation, interference with economic relations, malicious
prosecution, strict liability + Negligence

DIFFERENCE BETWEEN TRESPASS AND CASE 

Trespass
1. Applicable when injury is direct and
immediate
2. No need of proof of actual damages
3. Proof of defendant’s fault not required
Case
1. Remedy when harm is indirect and
consequential
2. Proof of actual damages is required
3. Proof of defendant’s fault is required
Of the Court System…
 Early English courts were too many and each has a jealously guarded jurisdiction
 Royal courts (from which common law is derived) had very limited jurisdiction  only matters which
pertained to the king’s peace where cognizable
 Royal courts only entertained action for trespass when there is an allegation that it involved a breach of
the king’s peace
o Otherwise stated, the royal court only heard tort cases that involve serious civil wrongs and on
matters involving trying of title to land, which were often the subject of trespass actions
o Eventually, it was established that the essence of trespass was that defendant had committed
some affirmative act which caused a direct and immediate injury to the plaintiff