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CHAPTER 1 Introduction

you begin your adventures into a subject where general principles at times appear to point one way and common sense the other, the title of the book might present a more immediate obstacle: what is ‘tort law’? 1

1.2 What is tort law? A ‘tort’ is a civil wrong for which the law provides a remedy. The origins of the word ‘tort’ come indirectly from the Latin tortus (meaning crooked or twisted), although the more usual translation is that from modern French where it corresponds with ‘wrong’. Thus, at its simplest, the law of tort is the law of non-criminal wrongs. 2 The plural ‘wrongs’ here is deliberate. Tort law is the name given to a diverse collection of legal wrongs. Some of these will, no doubt, be familiar—the torts of negligence, trespass (usu ally to land), assault, battery, libel, for example often feature in the news. Others may be less familiar—such as the tort of nuisance, which protects an individual’s use and enjoy ment of their land, or those named after the cases from which they stem, such as the tort in Wilkinson v Downton [1897] which provides a remedy for indirect physical harm caused by an intentional act. Beyond this, however, there is no general agreement on what defines, and distinguishes, a ‘tort’. Moreover, no one really knows quite how many torts there are. The boundaries between torts are fluid and the popularity of individual torts can change—‘old’ torts die out (the rule in Rylands v Fletcher [1868] may be a case in point here) 3 while new ones emerge (see e.g. the tort of misuse of private information or ‘privacy’ ( Vidal-Hall v Google Inc [2014])). 4 At other times, tort law adapts—with greater or lesser success—to address social problems including historic child sex abuse 5 (vicarious liability), sexual violence 6 and image-based sexual abuse (trespass to the person, harassment, the tort in

1. This chapter draws on and develops the ideas, insights and structure of Alan Thomson’s introduction to tort law lectures given at the University of Kent. We both worked with Alan, who retired in 2010, and are grateful for his collegiate support. In particular, we thank him for his permission to use his case example of Woodroffe Hedley v Cuthbertson [1997]. 2. There are, of course, other civil wrongs which fall outside the remit of tort—including breach of contract and equitable obligations. The principal distinction between torts and breaches of contract is that contracts are voluntarily undertaken obligations, whereas the wrongs which make up the law of torts are breaches of imposed obligations—in other words, obligations which we have not chosen to be subjected to. E.g. my obligation not to hit you is an obligation I am subjected to whether I like it or not. By contrast, if I contract to sell my car to you, my obligation to hand over the car is an obligation I have chosen to be subjected to. The distinction between torts and breaches of equitable obligations is less straightforward, essentially turning on an outdated jurisdictional division between the types of court which first recognised these obligations. These days it is increasingly com mon to see some equitable wrongs, such as breach of confidence, treated as a tort ( Campbell v Mirror Group Newspapers Ltd [2004] ). 3. Discussed in Chapter 19 . 4. Discussed in Chapter 16 . 5. Paula Giliker ‘“Tailoring” the Close Connection Test for Sexual Abuse Victims: Vicarious Liability in the Court of Appeal’ University of Bristol Law School Blog 26 April 2021. 6. Nikki Godden ‘Tort Claims for Rape: More Trials, Fewer Tribulations?’ in Janice Richardson and Erika Rackley (eds) Feminist Perspectives on Tort Law (Routledge 2012) 163–78. PROPERTY OF OXFORD UNIVERSITY PRESS