Editing Tort (section)

==Common law==
===History===
Torts and crimes in common law originate in the [[Germanic law|Germanic]] system of compensatory [[Fine (penalty)|fines]] for wrongs, with no clear distinction between crimes and other wrongs.<ref name="Malone" /> In [[Anglo-Saxon law]], most wrongs required payment in money paid to the wronged person or their clan.<ref>See [http://www.fordham.edu/halsall/source/560-975dooms.asp Medieval Sourcebook: The Anglo-Saxon Dooms, 560–975] {{Webarchive|url=https://web.archive.org/web/20141006150341/http://www.fordham.edu/halsall/source/560-975dooms.asp |date=6 October 2014 }}. ''Internet Medieval Source Book'' by Fordham University.</ref> Fines in the form of ''wīte'' ({{literal|blame|fault}}) were paid to the king or holder of a court for disturbances of public order, while the fine of ''[[weregild]]'' was imposed on those who committed murder with the intention of preventing blood [[feud]]s.<ref name="Malone">Malone WS. (1970). [http://guweb2.gonzaga.edu/~dewolf/torts/pdf/31louis1.pdf "Ruminations on the Role of Fault in the History of the Common Law of Torts"]. ''Louisiana Law Review''.</ref> Some wrongs in later law codes were ''botleas'' 'without remedy' (e.g. theft, open murder, arson, treason against one's lord), that is, unable to be compensated, and those convicted of a ''botleas'' crime were at the king's mercy.<ref>Bruce R. O'Brien, "Anglo-Saxon Law", in ''The Oxford International Encyclopedia of Legal History'', vol. 1 (Oxford: Oxford UP, 2009), 179.</ref> Items or creatures which caused death were also destroyed as [[deodand]]s. [[Alfred the Great]]'s [[Doom Book]] distinguished unintentional injuries from intentional ones, and defined culpability based on status, age, and gender. After the [[Norman Conquest]], fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a ''tort'' or ''trespass'', and there arose a division between civil pleas and pleas of the crown.<ref>David Ibbetson, "Tort: English Common Law", in ''The Oxford International Encyclopedia of Legal History'', vol. 5 (Oxford: Oxford UP, 2009), 467.</ref> The petty [[assizes]] (i.e. [[Assize of novel disseisin|of novel disseisin]], [[Assize of mort d'ancestor|of mort d'ancestor]], and [[Assize of darrein presentment|of darrein presentment]]) were established in 1166 as a remedy for interference with possession of freehold land. The [[trespass]] action was an early civil [[plea]] in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. It arose in local courts for [[slander]], [[breach of contract]], or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made ''de cursu'' (available by right, not fee); however, it was restricted to interference with land and forcible breaches of the king's peace. It may have arisen either out of the "appeal of felony", or assize of novel disseisin, or [[replevin]]. Later, after the [[Statute of Westminster 1285]], in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force.<ref name=Malone/> As its scope increased, it became simply "action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case.<ref name=Malone/>

In 1401, the English case ''[[Beaulieu v Finglam]]'' imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle.<ref name=Malone/> Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for [[common carrier]], which arose around 1400, was also emphasised in the medieval period.<ref name=Malone/> Unintentional injuries were relatively infrequent in the medieval period. As transportation improved and carriages became popular in the 18th and 19th centuries, however, collisions and carelessness became more prominent in court records.<ref name=Malone/> In general, scholars of England such as [[William Blackstone]] took a hostile view to litigation, and rules against [[champerty and maintenance]] and [[vexatious litigation]] existed.<ref>Sebok A. (2011). [https://ssrn.com/abstract=2103465 What is Wrong with Wrongdoing]. ''[[Florida State University]] Law Review''.</ref>  The right of victims to receive [[wiktionary:redress|redress]] was regarded by later English scholars as one of the [[rights of Englishmen]].<ref name="Goldberg_2005">Goldberg JCP. (2005). [https://ssrn.com/abstract=789784 The constitutional status of tort law: Due process and the right to a law for the redress of wrongs]. ''Yale Law Journal''.</ref> Blackstone's ''[[Commentaries on the Laws of England]]'', which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word ''tort'' in a few places.<ref name="Goldberg_2005" />

In contemporary common law jurisdictions, successful claimants in both tort and contract law must show that they have suffered [[Proximate cause|foreseeable]] loss or harm as a [[Causation (law)|direct result]] of the [[Breach of duty in English law|breach of duty]].{{efn|Under the UK [[Contracts (Rights of Third Parties) Act 1999]], a person may enforce a contract even when they are not a party to it.}}{{efn|If an employee injures himself in the course and scope of employment, he will be both tortfeasor and claimant under the rule of [[vicarious liability]].}} Legal injuries addressable under tort law in common law jurisdictions are not limited to [[Physical injury|physical injuries]] and may include emotional, economic,{{efn|[[Pure economic loss]] is rarely recoverable.}} or reputational injuries as well as violations of [[Privacy law|privacy]], property, or constitutional rights. Torts comprise such varied topics as [[auto accidents|automobile accidents]], [[false imprisonment]], [[defamation]], [[product liability]], [[copyright infringement]], and environmental pollution ([[toxic torts]]). Modern torts are heavily affected by insurance and [[insurance law]], as many cases are settled through [[claims adjuster|claims adjustment]] rather than by trial, and are defended by insurance lawyers, with the [[insurance policy]] setting a ceiling on the possible payment.<ref>Goldberg JCP. (2008). [https://ssrn.com/abstract=1122324 Ten Half-Truths About Tort Law]. ''Valparaiso University Law Review''.</ref>

=== Liability ===
While individuals and corporations are typically only liable for their own actions, [[indirect liability]] for the tortious acts of others may arise by operation of law, notably through [[joint and several liability]] doctrines as well as forms of [[secondary liability]]. Liability may arise through [[enterprise liability]] or, in product liability cases in the United States, [[market share liability]]. In certain cases, a person might hold [[vicarious liability]] for their employee or child under the [[law of agency]] through the doctrine of [[respondeat superior]]. For example, if a shop employee spilled cleaning liquid on the supermarket floor and a victim fell and suffered injuries, the plaintiff might be able to sue either the employee or the employer. There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation.<ref name=":2" />

[[Absolute liability]], under the rule in [[M. C. Mehta v. Union of India]], in Indian tort law is a unique outgrowth of the doctrine of [[strict liability]] for [[ultrahazardous activity|ultrahazardous activities]]. Under the precedent established in the English case of [[Rylands v Fletcher]], upon which the Indian doctrine of absolute liability is based, anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own purposes anything likely to cause [[mischief]] if it escapes is answerable for all direct damage thereby caused.<ref>''Rylands v Fletcher'' (1868) LR 3 HL 330.</ref> While, in England and many other common law jurisdictions, this precedent is used to impose strict liability on certain areas of nuisance law<ref name="mark">{{citation |author=Simon Deakin, Angus Johnston and Basil Markesinis |title=Markesinis and Deakin's tort law 6th ed |year=2007 |publisher=Clarendon press, Oxford}}</ref> and is strictly "a remedy for damage to land or interests in land" under which "damages for personal injuries are not recoverable",<ref>''Transco plc v Stockport Metropolitan Borough Council'' [2003] UKHL 61.</ref> Indian courts have developed this rule into a distinct principle of absolute liability, where an enterprise is absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from the operation of hazardous activity.<ref name="mehta">''MC Mehta v Union of India'' AIR 1987 SC 1086 (Oleum Gas Leak Case).</ref> This differs greatly from the English approach as it includes all kinds of resulting liability, rather than being limited to damage to land.<ref name="mehta" />

In New Zealand, the tort system for the majority of personal injuries was scrapped with the establishment of the [[Accident Compensation Corporation]], a universal system of [[no-fault insurance]].<ref name=Cane/> The rationale underlying New Zealand's elimination of personal injury torts was securing [[equality of treatment]] for victims regardless of whether or the extent to which they or any other party was at fault.<ref name="Atiyah TDLC8"/> This was the basis for much of Professor [[Patrick Atiyah]]'s scholarship as articulated in ''Accidents, Compensation and the Law'' (1970). Originally his proposal was the gradual abolition of tort actions, and its replacement with schemes like those for industrial injuries to cover for all illness, disability and disease, whether caused by people or nature. In addition to the development of the Accident Compensation Corporation to eliminate personal injury lawsuits, the tort system for [[medical malpractice]] was scrapped in New Zealand, both following recommendations from the Royal Commission in 1967 for 'no fault' compensation scheme (see The Woodhouse Report).<ref name="Atiyah TDLC8">P.S. Atiyah (1997) ''The Damages Lottery'', Ch.8</ref>

In the case of the United States, a survey of trial lawyers identified several modern innovations that developed after the divergence of English and American tort law, including strict liability for products based on ''Greenman v. Yuba Power Products'', the limitation of various immunities (e.g. [[sovereign immunity]], [[charitable immunity]]), [[comparative negligence]], broader rules for admitting evidence, increased damages for [[Intentional infliction of emotional distress|emotional distress]], and [[toxic tort]]s and [[class action]] lawsuits. However, there has also been a reaction in terms of [[tort reform]], which in some cases have been struck down as violating state constitutions, and federal preemption of state laws.<ref name=Top10>American Association for Justice (1996). [http://www.thefreelibrary.com/Top+10+in+torts%3A+evolution+in+the+common+law.-a018526923 Top 10 in torts: evolution in the common law.].</ref>

===Categories of torts in common law jurisdictions===
{{Main article|Outline of tort law}}
Torts may be categorised in several ways, with a particularly common division between negligent and intentional torts. [[Quasi-tort]]s are unusual tort actions. Particularly in the United States, "collateral tort" is used to refer to torts in [[labour law]] such as [[intentional infliction of emotional distress]] ("outrage");<ref>[[Martha Chamallas|Chamallas M]], Vriggins JB. (2010). [https://books.google.com/books?id=mOCtul09xHMC&pg=PA68 The Measure of Injury: Race, Gender, and Tort Law, p. 68].</ref> or [[wrongful dismissal]]; these evolving [[cause of action|causes of action]] are debated and overlap with [[contract law]] or other legal areas to some degree.<ref name=Gergen>Gergen M. (1995). [http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2468&context=facpubs Grudging Defense of the Role of the Collateral Torts in Wrongful Termination Litigation Employment]. ''Texas Law Review''.</ref>  In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, [[workers' compensation]] laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside the traditional common law torts. These are loosely grouped into quasi-torts or liability torts.<ref name="Atiyah" />

====Negligence====
{{Main article|Negligence}}
The tort of negligence is a cause of action leading to relief designed to protect legal rights{{efn|Depending on jurisdiction, this includes those of personal safety, property, and intangible economic interests or noneconomic interests such as the tort of [[negligent infliction of emotional distress]]}} from actions which, although unintentional, nevertheless cause some form of legal harm to the plaintiff. In order to win an action for negligence, a plaintiff must prove: duty, breach of duty, causation, scope of liability, and damages. Further, a defendant may assert various defences to a plaintiff's case, including comparative fault and assumption of risk. Negligence is a tort which arises from the breach of the [[duty of care]] owed by one person to another from the perspective of a [[reasonable person]]. Although credited as appearing in the United States in ''[[Brown v. Kendall]]'', the later Scottish case of ''[[Donoghue v Stevenson]]'' [1932] AC 562, followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions.<ref>Ferrari F. (1994). [http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1003&context=annlsurvey Donoghue v. Stevenson's 60th Anniversary]. ''Annual Survey of International & Comparative Law''.</ref> In ''Donoghue'', Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence.

In most common law jurisdictions, there are four elements to a negligence action:<ref>{{cite journal|last1=Boehm|first1=Theodore R.|title=A Tangled Webb - Reexamining the Role of Duty in Indiana Negligence Actions|journal=Indiana Law Review|date=2003|volume=37|issue=1|pages=1–20 |doi=10.18060/3628 |url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/indilr37&div=8&id=&page=|access-date=22 September 2017|url-access=subscription}}</ref>
#duty: the [[defendant]] has a duty to others, including the [[plaintiff]], to [[duty of care|exercise reasonable care]]{{efn|For example, in the business realm, the auditor has a duty of care to the company they are auditing – that the documents created are a true and reliable representation of the company's financial position. However, as per [[Esanda Finance Corporation Ltd v Peat Marwick Hungerfords|Esanda Finance Corporation Ltd v. Peat Marwick Hungerfords]], such auditors do NOT provide a duty of care to third parties who rely on their reports. An exception is where the auditor provides the third party with a privity letter, explicitly stating the third party can rely on the report for a specific purpose. In such cases, the privity letter establishes a duty of care.<ref>{{Cite web |last=Sadler|first=Pauline|date=2009|title=Liability for Negligent Misrepresentation in the Finance Industry|url=http://www.austlii.edu.au/au/journals/LegIssBus/2009/3.pdf}} (2009) 11 Legal Issues in Business 17.</ref>}}
#breach: the defendant breaches that duty through an act or culpable omission
#damages: as a result of that act or omission, the plaintiff suffers an injury
#causation: the injury to the plaintiff is a reasonably foreseeable{{efn|The case ''[[Chapman v Hearse]]'' added to the precedent of negligence where in previous cases reasonable foreseeability was applied narrowly to include all predictable actions, ''Chapman v Hearse'' extended this to include all damages of the same nature which could be reasonably foreseen.<ref>''Chapman v Hearse'' (1961) 106 CLR 112</ref>}} consequence of the defendant's act or omission under the [[proximate cause]] doctrine.{{efn|Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.<ref name="March v Stamare">{{cite AustLII|HCA|12|1991|litigants=[[March v Stramare (E & MH) Pty Ltd]] |parallelcite=(1991) 171 [[Commonwealth Law Reports|CLR]] 506 |courtname=auto}}.</ref><ref>[http://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts12.htm Ch. 12, Proximate or legal cause] LexisNexis Study Outline.</ref> The defendant may argue that there was a prior cause or a superseding intervening cause. A common situation where a prior cause becomes an issue is the personal injury car accident, where the person re-injures an old injury. For example, someone who has a bad back is injured in the back in a car accident. Years later, he is still in pain. He must prove the pain is caused by the car accident, and not the natural progression of the previous problem with the back. A superseding intervening cause happens shortly after the injury. For example, if, after the accident, the doctor who works on you commits malpractice and injures you further, the defendant can argue that it was not the accident, but the incompetent doctor who caused your injury. [https://web.archive.org/web/20120615233606/http://www.jud.ct.gov/ji/Civil/part3/3.1-8.htm]}}

Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm.<ref name="owen">{{cite journal|last1=Owen|first1=David G.|title=The Five Elements of Negligence|journal=Hofstra Law Review|date=Summer 2007|volume=35|issue=4|page=1671|url=http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|access-date=22 September 2017}}</ref> Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages.<ref name="owen"/> However, at their heart, the various definitions of what constitutes negligent conduct are very similar. Depending on jurisdiction, [[product liability]] cases such as those involving warranties may be considered negligence actions or fall under a separate category of [[strict liability]] torts. Similarly, cases involving environmental or consumer health torts which other countries treat as negligence or strict liability torts are treated in [[Tort law in India|India]] as [[absolute liability]] torts.

In establishing whether a duty of care exists, different common law jurisdictions have developed a variety of distinct but related approaches, with many jurisdictions building on the test established in ''[[Anns v Merton LBC]]''. In Singapore, the current leading case is ''[[Spandeck Engineering v Defence Science and Technology Agency]]'', which builds on ''Anns'' by establishing a two step test comprising an analysis of [[proximate cause]] and [[public policy doctrine|public policy]] as a universal test, independent from the individual circumstances of a given case, for determining the existence of a duty of care. The Supreme Court of Canada established a similar test in the context of assessing damages for [[pure economic loss]] owing to negligence derived from ''Anns'' which consists of a two step examination of the existence of a sufficiently proximate relationship between the parties and public policy considerations; however, the Canadian test is more sensitive to the individual circumstances of a given case and the first step is generally deemed to be met where a case falls into one of three [[Canadian tort law#Negligence|sets of circumstances recognised by precedent]] while the Singaporean test is independent of precedent. In English tort law, ''[[Caparo Industries plc v Dickman]]'' established a tripartite test for the existence of a duty of care per which harm must be reasonably foreseeable as a potential result of the defendant's conduct; the parties must be in a relationship of proximity; and it must be fair, just, and reasonable to impose such a duty.

====Intentional torts====
{{Main article|Intentional tort}}
Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories:
*[[Trespass#Trespass to the person|Torts against the person]] include [[assault (tort)|assault]], [[battery (tort)|battery]], [[false imprisonment]], [[intentional infliction of emotional distress]], and fraud, although the latter is also an [[economic tort]].
*Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognised include trespass to land, trespass to chattels (personal property), and conversion.
*Dignitary torts are a category of intentional tort affecting the honour, dignity, and reputation of an individual and include: [[Defamation]],{{efn|Defamation is tarnishing the reputation of someone; it has two varieties, ''slander'' and ''libel''. Slander is spoken defamation and libel is printed or broadcast defamation. The two otherwise share the same features: making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the First Amendment to the Constitution of the United States, or Article 10 of the European Convention of Human Rights. Related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.}} [[invasion of privacy]], [[breach of confidence]], torts related to the justice system such as [[malicious prosecution]] and [[abuse of process]], and torts pertaining to sexual relations that are considered obsolete in most common law jurisdictions such as [[alienation of affection]] and [[criminal conversation]].
An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy the intent requirement.<ref>{{cite web|url=https://nationalparalegal.edu/public_documents/courseware_asp_files/torts/againstProperty/transferredIntent.asp|title=Transferred Intent – LawShelf Educational Media|website=nationalparalegal.edu|archive-url=https://web.archive.org/web/20171010010523/https://lawshelf.com/courseware/entry/transferred-intent|archive-date=10 October 2017}}</ref> Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.

====Nuisance====
{{Main article|Nuisance}}
"Nuisance" is traditionally used to describe an activity which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private nuisance) or the general public (public nuisance). The claimant can sue for most acts that interfere with their use and enjoyment of their land. In English law, whether activity was an illegal nuisance depended upon the area and whether the activity was "for the benefit of the commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet.<ref name=Nuisance>Cavert W. (2009). [https://www.academia.edu/202432/A_Right_to_Clean_Air_Coal_Smoke_Property_and_Nuisance_Law_in_Early_Modern_London Right to Clean Air? Coal Smoke, Property, and Nuisance Law in Early Modern London] World Conference on Environmental History.</ref> The case ''Jones v Powell'' (1629) provides an early example, in which a person's professional papers were damaged by the vapors of a neighboring brewery. Although the outcome of this case is unclear,<ref name=Nuisance/> Whitelocke of the [[Court of King's Bench (England)|Court of the King's Bench]] is recorded as saying that since the water supply in area was already contaminated, the nuisance was not actionable as it is "better that they should be spoiled than that the commonwealth stand in need of good liquor".{{Citation needed|date=March 2013}}

In English law, a related category of tort liability was created in the case of ''[[Rylands v Fletcher]]'' (1868): strict liability was established for a dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. In ''[[Cambridge Water Co Ltd v Eastern Counties Leather plc]]'' (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs.<ref name="ElworthyHolder">{{cite book|last1=Elworthy|first1=Sue|last2=Holder|first2=Jane|title=Environmental Protection|date=1 June 1997|publisher=Cambridge University Press|isbn=978-0-406-03770-1|page=67|url=http://www.cambridge.org/us/academic/subjects/law/law-general-interest/environmental-protection-text-and-materials?format=PB&isbn=9780521613538|access-date=8 August 2016|archive-url=https://web.archive.org/web/20160808211159/http://www.cambridge.org/us/academic/subjects/law/law-general-interest/environmental-protection-text-and-materials?format=PB&isbn=9780521613538|archive-date=8 August 2016}}</ref> The ''Rylands'' rule remains in use in England and Wales. In Australian law, it has been merged into negligence.<ref>''[[Burnie Port Authority v General Jones Pty Ltd]]''</ref>

====Economic torts====
{{Main article|Economic tort|Misrepresentation}}
Economic torts{{efn|Also referred to as "business torts"}} typically involve commercial transactions, and include [[tortious interference]] with trade or contract, fraud, injurious falsehood, and negligent misrepresentation. Negligent misrepresentation torts are distinct from contractual cases involving misrepresentation in that there is no [[privity]] of contract; these torts are likely to involve [[pure economic loss]] which has been less-commonly recoverable in tort. One criterion for determining whether economic loss is recoverable is the "foreseeability" doctrine.<ref>Christie GC. (1996). [http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1739&context=faculty_scholarship The Uneasy Place of Principle in Tort Law]. ''Duke Law Review''.</ref> The economic loss rule is highly confusing and inconsistently applied<ref>Barton RJ. (2000). [http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1538&context=wmlr Drowning in a Sea of Contract: Application of The Economic Loss Rule to Fraud and Negligent Misrepresentation Claims]. ''William and Mary Law Review''.</ref> and began in 1965 from a California case involving strict liability for product defects; in 1986, the U.S. Supreme Court adopted the doctrine in ''East River S.S. Corp. v. Transamerica Deleval, Inc''.<ref name=":0">{{cite journal |last=Andrew|first=Gray|year=2006|title=Drowning in a Sea of Confusion: Applying the Economic Loss Doctrine to Component Parts, Service Contracts, and Fraud |url = https://openscholarship.wustl.edu/law_lawreview/vol84/iss6/4/ |journal=Washington University Law Review |language=en|volume=84|issue=6|issn=2166-7993}}</ref> In 2010, the [[Washington Supreme Court|supreme court of the U.S. state of Washington]] replaced the economic loss doctrine with an "independent duty doctrine".<ref>{{cite web |url = https://apps.americanbar.org/litigation/litigationnews/top_stories/013111-economic-loss-independent-duty-doctrine.html|title=Washington Supreme Court Reassesses Economic Loss Rule {{!}} Litigation News {{!}} ABA Section of Litigation |website=apps.americanbar.org |archive-url = https://web.archive.org/web/20160703164548/https://apps.americanbar.org/litigation/litigationnews/top_stories/013111-economic-loss-independent-duty-doctrine.html |archive-date=3 July 2016|access-date=25 March 2018}}</ref>

Economic antitrust torts have been somewhat submerged by modern [[competition law]]. However, in the United States, private parties are permitted in certain circumstances to sue for anticompetitive practices, including under federal or state statutes or on the basis of common law [[tortious interference]], which may be based upon the [[Restatement of Torts, Second|Restatement (Second) of Torts]] §766.<ref>Saferstein HI. (1990). [https://www.jstor.org/stable/40841303 The Ascendancy of Business Tort Claims in Antitrust Practice. ''Antitrust Law Journal''.]</ref>

Negligent misrepresentation as tort where no contractual [[privity]] exists was disallowed in England by ''[[Derry v Peek]]'' [1889]; however, this position was overturned in ''[[Hedley Byrne v Heller]]'' in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant.<ref name=Ballam/> United States courts and scholars "paid lip-service" to ''Derry''; however, scholars such as [[William Prosser (academic)|William Prosser]] argued that it was misinterpreted by English courts.<ref name=Ballam/> The case of ''[[Ultramares Corporation v. Touche]]'' (1932) limited the liability of an [[auditor]] to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s.<ref name=Ballam/> The [[Restatement of Torts, Second|Restatement (Second) of Torts]] expanded liability to "foreseeable" users rather than specifically identified "foreseen" users of the information, dramatically expanding liability and affecting professionals such as accountants, architects, attorneys, and [[surveying|surveyors]].<ref name=Ballam/> As of 1989, most U.S. jurisdictions follow either the ''Ultramares'' approach or the Restatement approach.<ref name=Ballam>Ballam DE. (1989). [http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1598&context=llr The Expanding Scope of the Tort of Negligent Misrepresentation]. ''Loyola of Los Angeles Law Review''.</ref>

The [[tort of deceit]] for inducement into a contract is a tort in English law, but in practice has been replaced by actions under [[Misrepresentation Act 1967]].<ref>Chen-Wishart M. (2007). [https://books.google.com/books?id=CHYo04GovjcC&pg=PA40 Contract Law]. ''Oxford University Press''.</ref> In the United States, similar torts existed but have become superseded to some degree by contract law and the pure economic loss rule.<ref name=Lens2011/> Historically (and to some degree today), fraudulent (but not negligent<ref name=Lens2011/>) misrepresentation involving damages for economic loss may be awarded under the "benefit-of-the-bargain" rule (damages identical to [[expectation damages]] in contracts<ref name=Lens2011/>) which awards the plaintiff the difference between the value represented and the actual value.<ref name=Lens2011/> Beginning with ''Stiles v. White'' (1846) in Massachusetts, this rule spread across the country as a majority rule with the "out-of-pocket damages" rule as a minority rule.<ref name=Lens2011>Lens JW. (2011). [http://www.law.ku.edu/sites/law.drupal.ku.edu/files/docs/law_review/v59/02-Lens_Final.pdf Honest Confusion: The Purpose of Compensatory Damages in Tort and Fraudulent Misrepresentation] {{Webarchive|url=https://web.archive.org/web/20121123155733/http://www.law.ku.edu/sites/law.drupal.ku.edu/files/docs/law_review/v59/02-Lens_Final.pdf |date=23 November 2012 }}. ''Kansas Law Review''.</ref> Although the damages under the "benefit-of-the-bargain" are described as compensatory, the plaintiff is left better off than before the transaction.<ref name=Lens2011/> Since the economic loss rule would eliminate these benefits if applied strictly, there is an exception to allow the misrepresentation tort if not related to a contract.<ref name=Lens2011/>

===Remedies and defences in common law jurisdictions===
The remedies and defences available in common law jurisdictions are typically similar, deriving from judicial precedent with occasional legislative intervention. Compensation by way of damages is typically the default remedy available to plaintiffs, with injunctions and specific performance being relatively rare in tort law cases. Relatively uniquely for a common law jurisdiction, Singapore's Community Disputes Resolution Act 2015 (CDRA) alters the common law by codifying a statutory tort of "interference with enjoyment or use of place of residence" and provides for a variety of remedies beyond damages, ranging from injunctions and specific performance to court-ordered apologies.<ref name=CDRA2015>{{Cite web|url=https://sso.agc.gov.sg:5443/Act/CDRA2015|title=Community Disputes Resolution Act 2015 - Singapore Statutes Online|website=sso.agc.gov.sg}}{{Dead link|date=October 2022 |bot=InternetArchiveBot |fix-attempted=yes }}</ref> Where a court order providing for a remedy other than damages is awarded under the CDRA is violated, sections 5-8 of the act require that the plaintiff apply for a 'special direction' to be issued in order to enforce the original remedy and section 9 provides that failure to comply with a special direction is grounds for the court to issue an order excluding the tortfeasor from their residence.<ref name=CDRA2015/> Aside from legislatively created remedies such as the CDRA, courts in common law jurisdictions will typically provide for [[damages]] (which, depending on jurisdiction, may include [[punitive damages]]), but judges will issue injunctions and specific performance where they deem damages not to be a sufficient remedy. Legislatures in various common law jurisdictions have curtailed the ability of judges to award punitive or other non-economic damages through the use of [[non-economic damages caps]] and other [[tort reform]] measures.

Apart from proof that there was no breach of duty (in other words, that a tortious act was not committed in the first place), there are three principal defences to tortious liability in common law jurisdictions:

*[[Consent]] and warning: Typically, a victim cannot hold another liable if the victim has implicitly or explicitly consented to engage in a risky activity. This is frequently summarised by the maxim "[[volenti non fit injuria]]" (Latin: "to a willing person, no injury is done" or "no injury is done to a person who consents"). In many cases, those engaging in risky activities will be asked to sign a [[waiver]] releasing another party from liability. For example, spectators to certain sports are assumed to accept a risk of injury, such as a hockey puck or baseball striking a member of the audience. Warnings by the defendant may also provide a defence depending upon the jurisdiction and circumstances. This issue arises, for example, in the [[duty of care]] that landowners have for guests or trespasses, known as occupiers' liability.
*[[Comparative negligence|Comparative]] or [[contributory negligence]]: If the victim has contributed to causing their own harm through negligent or irresponsible actions, the damages may be reduced or eliminated. 
**Contributory negligence: The English case [[Butterfield v. Forrester]] (1809) established this defence. In England, this "[[contributory negligence]]" became a partial defence, but in the United States, any fault by the victim eliminated any damages.<ref name=Little2007>Little WBL. (2007). [http://law.campbell.edu/lawreview/articles/30-1-81.pdf "It is Much Easier to Find Fault With Others, Than to be Faultless Ourselves": Contributory Negligence as a Bar to a Claim for Breach of the Implied Warranty of Merchantability] {{Webarchive|url=https://web.archive.org/web/20100610164112/http://law.campbell.edu/lawreview/articles/30-1-81.pdf |date=10 June 2010 }}. ''Campbell Law Review''.</ref> This meant that if the plaintiff was 1% at fault, the victim would lose the entire lawsuit.<ref name=Little2007/> This was viewed as unnecessarily harsh and therefore amended to a [[comparative negligence]] system in many states; as of 2007 contributory negligence exists in only a few states such as North Carolina and Maryland.<ref name=Little2007/> 
** Comparative negligence: In comparative negligence, the victim's damages are reduced according to the degree of fault. Comparative negligence has been criticised as allowing a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant. Economists have further criticised comparative negligence as not encouraging precaution under the [[calculus of negligence]]. In response, many states now have a 50% rule where the plaintiff recovers nothing if the plaintiff is more than 50% responsible.
*Illegality: If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. The legal maxim ''[[ex turpi causa non oritur actio]]'', Latin for "no right of action arises from a despicable cause". Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained but for the property owner's intervention.
* Other defences and immunities:
**[[Sovereign immunity]]
**[[Good Samaritan law]]s, especially in jurisdictions with a statutory or common law [[duty to rescue]]
**[[Charitable immunity]]

===Discovery in tort litigation===
{{main|Discovery (law)|Tort reform#Cost of discovery}}

Discovery (or disclosure), a concept unique to common law jurisdictions, is a pre-trial procedure in a [[lawsuit]] in which each party, through the law of [[civil procedure]], can open-endedly demand evidence from the other party or parties by means of discovery devices such as [[interrogatories]], [[Request for production|requests for production of document]]s, [[request for admissions|requests for admissions]] and [[Deposition (law)|deposition]]s. Discovery can be obtained from non-parties using [[subpoena]]s.  When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a [[motion to compel]] discovery.<ref>{{cite journal|last1=Schwarzner|first1=William W.|title=The Federal Rules, the Adversary Process, and Discovery Reform|journal=University of Pittsburgh Law Review|date=1988|volume=50|page=703|url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/upitt50&div=24&id=&page=|access-date=30 September 2017}}</ref> In tort litigation, the availability of discovery enables plaintiffs to essentially carry out a private investigation, subpoenaing records and documents from the defendant.<ref name="Burbank_Page70">{{cite book |last1=Burbank |first1=Stephen B. |last2=Farhang |first2=Sean |author-link1=Stephen B. Burbank |title=Rights and Retrenchment: The Counterrevolution Against Federal Litigation |date=2017 |publisher=Cambridge University Press |location=Cambridge |isbn=9781107136991 |page=70 |url=https://books.google.com/books?id=xs8oDwAAQBAJ&pg=PA70 |access-date=12 July 2020}}</ref> Consequently, commentators in [[Civil law (legal system)|civil law jurisdictions]] regard discovery destructive of the [[rule of law]] and as  "a private inquisition."<ref name="Maxeiner_Page 151">{{cite book |last1=Maxeiner |first1=James R. |title=Failures of American Civil Justice in International Perspective |date=2011 |publisher=Cambridge University Press |location=Cambridge |isbn=9781139504898 |page=151 |url=https://books.google.com/books?id=Ef_Oa3qTqL4C&pg=PA151 |access-date=9 June 2020}}</ref> Civil law countries see the underlying objectives of discovery as properly [[State monopoly|monopolised by the state]] in order to maintain the rule of law: the investigative objective of discovery is the prerogative of the [[Executive (government)|executive branch]], and insofar as discovery may be able to facilitate the creation of new rights, that is the prerogative of the [[Legislature|legislative branch]].<ref name="Maxeiner_Page 151" /> The availability of discovery in common law jurisdictions means that plaintiffs who, in other jurisdictions, would not have sufficient evidence upon which to file a tort claim are able to do so in the hope that they will be able to obtain sufficient evidence through discovery. The primary drawbacks of this are that, on one hand, it creates the possibility that a plaintiff filing suit in good faith may not find enough evidence to succeed and incur legal expenses driven upward due to the cost of discovery; and, on the other hand, that it enables plaintiffs arguing in bad faith to initiate frivolous tort lawsuits and coerce defendants into agreeing to legal settlements in otherwise unmeritorious actions.

===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/>