Editing Tort (section)

===Variation between common law jurisdictions===
Among common law countries today, there are significant differences in tort law. Common law systems include [[United States tort law]], [[Australian tort law]], [[Canadian tort law]], [[Tort law in India|Indian tort law]], and the tort law of a variety of jurisdictions in Asia and Africa. There is a more apparent split in tort law between the Commonwealth countries and the United States.<ref name="Cane">Cane P. (2012). [http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1007&context=plr Searching for United States Tort Law in the Antipode]. ''Pepperdine Law Review''.</ref> Despite diverging from English common law in 1776, earlier than the other common law jurisdictions, [[United States tort law]] was influenced by English law and Blackstone's ''Commentaries'', with several state constitutions specifically providing for redress for torts<ref name="Goldberg_2005" /> in addition to [[reception statute]]s which adopted English law. However, tort law globally was viewed{{who|date=October 2015|by whom?}} as relatively undeveloped by the mid-19th century; the first American treatise on torts was published in the 1860s but the subject became particularly established when [[Oliver Wendell Holmes, Jr]] wrote on the subject in the 1880s.<ref name="Goldberg_2005" /> Holmes' writings have been described as the "first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain",<ref name="Golberg&Zipursky">Goldberg JCP, Zipursky BC. (2010). [https://ssrn.com/abstract=1576644 Torts as Wrongs]. ''Texas Law Review''.</ref> although Holmes' summary of the history of torts has been critically reviewed.<ref>Michael L. Rustad, Thomas F. Lambert Jr.. [http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/calnan505.htm Book Review of: A Revisionist History of Tort Law: from Holmesian Realism to Neoclassical Rationalism] {{Webarchive|url=https://web.archive.org/web/20130410024655/http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/calnan505.htm|date=10 April 2013}}. Suffolk University Law School.</ref> The 1928 US case of [[Palsgraf v. Long Island Railroad Co.]] heavily influenced the British judges in the 1932 [[Judicial functions of the House of Lords|House of Lords]] case of [[Donoghue v Stevenson]]. The United States has since been perceived as particularly prone to filing tort lawsuits even relative to other common law countries, although this perception has been criticised and debated.<ref name="Atiyah">[[Patrick Atiyah|Atiyah PS]]. (1987). [http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3011&context=dlj Tort Law and the Alternatives: Some Anglo-American Comparisons]. ''Duke Law Journal''.</ref> 20th century academics have identified that class actions were relatively uncommon outside of the United States,<ref name="Atiyah" /> noting that the English law was less generous to the plaintiff in the following ways: [[contingent fee]] arrangements were restricted, English judges tried more decisions and set [[damages]] rather than juries, wrongful death lawsuits were relatively restricted, punitive damages were relatively unavailable, the [[collateral source rule]] was restricted, and strict liability, such as for product liability, was relatively unavailable.<ref name="Atiyah" /> The English [[Welfare state in the United Kingdom|welfare state]], which provides free healthcare to victims of injury, may explain the lower tendency towards personal injury lawsuits in England.<ref name="Atiyah" /> A similar observation has also been made with regard to [[Australia]].<ref name="Cane" />

While Indian tort law is generally derived from [[Law of England and Wales|English law]], there are certain differences between the two systems. Indian tort law uniquely includes remedies for constitutional torts, which are actions by the government that infringe upon rights enshrined in the [[Constitution of India|Constitution]], as well as a system of [[absolute liability]] for businesses engaged in hazardous activity as outlined in the rule in [[M. C. Mehta v. Union of India]]. Similar to other common law jurisdictions, conduct which gives rise to a cause of action under tort law is additionally criminalised by the [[Indian Penal Code]], which was originally enacted in 1860.<ref>[[Indian Penal Code]], Act No. 45 of 1860</ref> As a result of the influence of its relatively early codification of criminal law, the torts of assault, battery, and false imprisonment are interpreted by Indian courts and the courts of jurisdictions that were formerly part of the [[British Raj|British Indian Empire]] (e.g. Pakistan, Bangladesh) and British colonies in South East Asia which adopted the Indian Penal Code (i.e. Singapore, Malaysia, and Brunei) with reference to analogous crimes outlined in the code. For instance, assault is interpreted in the context of s.351 per which the following criteria constitute assault:<ref name="penal">The Indian Penal Code Act No. 45 of 1860 s 351.</ref>
*Making of any gesture or preparation by a person in the presence of another.
*Intention or knowledge of likelihood that such gesture or preparation will cause the person present to apprehend that the person making it is about to use criminal force on them.
Similarly, battery is interpreted in the context of criminal force as outlined in s.350.<ref>The Law of Tort, P. S. Atchuthen Pillai (Eastern Book Co, 8 Ed, 1987).</ref>{{efn|"Whoever intentionally uses force to any person, without that person's consent in order to the committing of any offence or intending by the use of such force he will cause injury, fear, or annoyance to the person to whom the force is used is said to use criminal force to that other".<ref name="auto">The Indian Penal Code Act No. 45 of 1860 s 350.</ref>}}

An area of tort unique to India is the constitutional tort, a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle.<ref>The landmark case on this was ''Rudul Sah v State of Bihar'' (1983) 4 SCC 141 – a case on illegal detention.</ref> In practice, constitutional torts in India serve the role served by [[administrative court]]s in many [[Civil law (legal system)|civil law]] jurisdictions and much of the function of [[constitutional review]] in other jurisdictions, thereby functioning as a branch of [[administrative law]] rather than [[private law]]. Rather than developing principles of [[Administrative law#In common law countries|administrative fairness]] as a distinct branch of law as other common law jurisdictions have, Indian courts have thus extended tort law as it applies between private parties to address unlawful administrative and legislative action.

Within Canada's common law provinces, there is currently no consistent approach to the tort of invasion of privacy. Four provinces (British Columbia,<ref>{{Cite web|url=http://www.bclaws.ca/civix/document/id/complete/statreg/00_96373_01|title=Privacy Act|website=www.bclaws.ca|access-date=2018-10-03}}</ref> Manitoba,<ref>{{Cite web|url=https://web2.gov.mb.ca/laws/statutes/ccsm/p125e.php|title=Manitoba Laws|last=Justice|first=Manitoba|website=web2.gov.mb.ca|language=en|access-date=2018-10-03}}</ref> Newfoundland<ref>{{Cite web|url=https://www.assembly.nl.ca/Legislation/sr/statutes/p22.htm|title=RSNL1990 CHAPTER P-22 - PRIVACY ACT|website=www.assembly.nl.ca|access-date=2018-10-03}}</ref> and Saskatchewan<ref>{{Cite web|url=http://www.qp.gov.sk.ca/documents/English/Statutes/Statutes/P24.pdf|title=Privacy Act (Saskatchewan)}}</ref>) have created a statutory tort. Ontario has recognised the existence of the tort of "[[Intrusion on Seclusion|intrusion upon seclusion]]",<ref name="See Jones v Tsige, 2012 ONCA 32">{{Cite web|url=http://www.canlii.org/en/on/onca/doc/2012/2012onca32/2012onca32.html|title=See "Jones v Tsige", 2012 ONCA 32}}</ref> which has also been held to exist under tort law in the United States. British Columbia, on the other hand, has held that the tort does not exist in that province under the common law.<ref name="canlii.ca">See ''Ari v Insurance Corporation of British Columbia'', 2013 BCSC 1308. [http://canlii.ca/en/bc/bcsc/doc/2013/2013bcsc1308/2013bcsc1308.html]</ref> Like the United Kingdom and British Columbia,<ref name="canlii.ca"/>  but unlike Ontario<ref name="See Jones v Tsige, 2012 ONCA 32"/> and most jurisdictions in the United States, Indian tort law does not traditionally recognise a common law tort of [[invasion of privacy]] or [[Intrusion on Seclusion|intrusion on seclusion]].<ref name=FLTH>{{Cite web|url=https://frontline.thehindu.com/cover-story/article30177786.ece|title=A case for privacy|first=A. G.|last=NOORANI|website=Frontline|date=December 2011 }}</ref> Nevertheless, there is a shift in jurisprudence toward recognising breech of [[confidentiality]] as an actionable civil wrong.<ref>{{Cite web|url=http://www.legalservicesindia.com/article/1541/Confidentiality,-An-Emerging-Tort-In-India.html|title=Confidentiality, An Emerging Tort In India|website=www.legalservicesindia.com}}</ref> Proponents of protection for privacy under Indian tort law argue that "the [[right to privacy]] is implicit" in Article 21 of the [[Constitution of India]], which guarantees protections for personal liberties.<ref name=FLTH/> Despite the lack of a tort addressing violations of privacy by private individuals, the Supreme Court [[Right to Privacy verdict|recognised privacy as a constitutional right]] in 2017. Similarly, neither [[intentional infliction of emotional distress]] (IIED) nor [[negligent infliction of emotional distress]] (NIED) is recognised as a tort in Indian jurisprudence.<ref name=IIED>{{Cite web|url=https://www.indialegallive.com/transnational-exploration-of-the-tort-of-intentional-infliction-of-emotional-distress/|title = Transnational Exploration of the Tort of Intentional Infliction of Emotional Distress| work=India Legal |date = 17 April 2020}}</ref> While claims seeking damages for infliction of emotional distress were historically an accessory claim in a tort action alleging another distinct tort, the doctrine has evolved in North America into a stand-alone tort while English jurisprudence has evolved to typically recognise only recognised psychiatric injuries as grounds for compensation.<ref name=IIED/> Indian courts, while recognising the infliction of emotional distress regardless of intention as an actionable wrong in matrimonial disputes,<ref>{{Cite web|url=https://www.lawteacher.net/free-law-essays/health-law/infliction-of-emotional-distress.php|title = Infliction of Emotional Distress}}</ref> typically follow the English approach, although case law from both the United Kingdom and North America is frequently employed by judges ruling on cases in which damages for mental distress are sought.<ref name=IIED/>