In this paper we shall consider Streets observation and critically discuss this in the light of the evolution of the

law of tort. Street had observed that in most branches of English law the effect of historical accidentscontinually and taking on new forms1. Because of the extensiveness the subject, this discussion will focus on the description and function of tort, historical evolution of the doctrine, its present state, possible future developments with regard to trespass, negligence, strict liability and torts arising from digital or cyber developments. Before discussing Streets observations there is need to reflect on what issues Street is raising. These include historical perspective of tort, how the law of tort which is mainly common law based starts out not by statute but rather accidentally when people take claims to court for determination and the courts start to create rules of tort through judgment pronouncements as they seek to keep the law abreast of a changing society, technology and culture. The principles set are devoid of scientific tools and lack scientific explanation of the matter. The other issues are the challenges posed from the ever increasing clashes amongst the people and the difficulties posed because the law mainly not being statute keeps on evolving and new forms keep on emerging. The above reasons subsequently have given rise to the necessity for the law to correspondingly develop in congruence to these evolvements. The Law of tort whose concrete definition has eluded many legal scholars has developed over many centuries and is an area that is still developing in response to the changing society. As a distinct field of law it only emerged about 150 years ago. In view of the numerous unsuccessful attempts made to define a tort or tortious liability2 it is beyond the scope of this discussion to make another attempt to define tort or the law of tort. For the purposes of this discussion we just need to take note that tort has been described as a civil wrong for which the victim receives a remedy in the form of damages. According to Sir Percy Winfield the tortious liability arises from the breach of a duty towards persons generally and is primarily fixed by law, where the duty has been breached it is redressible by an action for unliquidated damages3.

The functions and purpose of tort include compensation, protection of interest, deterrence etc or as according to Wright that the purpose of the law of torts is to adjust losses and to afford
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Brazier, M, (1999) Street on Tort: 8th Edition, London, Butterworths, p 4 Rogers, W.V.H., (1989) Winfield & Jolowitz on Tort: 13th Edition, London, Sweet & Maxwell, p1 3 Rogers, W.V.H., (1989) Winfield & Jolowitz on Tort: 13th Edition, London, Sweet & Maxwell, p3

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compensation for injuries sustained by one person as the result of the conduct of another4.

In

order to understand better what the law of tort is, it is imperative that we distinguish it from the other branches of the law such as crime and contract. Tort differs from crime in that the purpose of the former is compensation whereas that of the latter is punishment. Tort also differs from crime in that the interests violated are that of an individual whereas in crime they are the societys interests. On the other hand tort differs from contract in that the duties assigned in tort are imposed by law whereas in contract the parties voluntarily and knowingly assume duties or obligations to the others. In addition, in contract the obligations are made to specific individuals whereas in tort the obligations are to the society.

Historically tort which sprang from trespass has its origins in an agricultural society and largely rural economy of the middle ages in Britain5. The tort law can be traced back to the blood feud, which evolved into the moot process of dispute resolution and ultimately developed into the common law. When the law first assumed a more civilized facade early in Anglo-Saxon history the concept of monetary compensation toward the clan emerged. Originally there was no distinction between crimes and torts. Furthermore there seemed to be no concern regarding issues of fault or blameworthiness. Over time the moot process led to the establishment of certain fundamental rules, communities discovered through trial and error those decisions that led to the greatest peace and harmony. They soon discovered that following the already established local rules provided optimal efficiency in conflict resolution. Eventually the local rules evolved into what is now known as common law. Trespass which evolved in the thirteenth century was one of the products of the common law evolution. In the early times the great bulk of trespasses were dealt with in the local courts. The trespass action was basically of a criminal nature and dealt with serious and forcible breaches of peace. In its developed form the writ of trespass covered injuries to land, to goods and to the person.

The concept of negligence developed along with the evolution of public transportation. As the courts were faced with more traffic-related cases they came to the realization that court decisions rendered under the trespass theory (merely focusing on direct force) was restrictive and consequently the idea of negligence emerged as a compromise. Travelers were granted some
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Wright, C.A. (1963) Cases on the Law of Torts: 3rd Edition, London, Butterworths, p1 An Overview of the Law of Tort p1

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some measures of protection from liability as long as they drove in such a manner that they reduced the risk of accidents. The rise of negligence as a cause of action coincided with the disintegration of actions in trespass. Negligence has since assumed prime importance after it was officially recognized by the House of Lords in England as a separate tort in the early 1930s after the landmark case of Donoghue v Stevenson6. Negligence focuses on the three ingredients of duty of care owed to the claimant by the defendant, breach of that duty and consequential damage to the claimant7. In modern legislation, negligence which was common law based, has been supplemented by statutory provisions. In Zambia examples include Contributory

Negligence under section 10 of Law Reforms (Miscellaneous Provisions) Act Chapter 74,

The strict liability (no fault) which had at one time reigned supreme during early times had its origin in nuisance, but has now developed quite distinctly. The notion of no fault evolved with the abandoning of the fault theory of tort law and the quest to provide social justice and create a just society. In this tort it is not necessary to prove fault but just that the defendant committed the act complained of and that there was damage that act. The strict liability rule is well demonstrated in the landmark case of Rylands v Fletcher8. The evolution of strict liability has also culminated into the introduction of such legislation as the Consumer Protection Act 1987.

The law of tort is ever growing and some scholars have alluded to its somewhat haphazard evolution, but what has been acknowledged by many legal scholars and jurists is that the evolution is in part in response to the social, technological changes in society, for instance in Chester v Afshar9 Lord Stern said that I am glad to have arrived at the conclusion that the claimant is entitled in law to succeed. The result is in accord with one of the most basic aspirations of the law, namely to right wrongs. Moreover, the decision,,.reflects the reasonable expectations of the public in contemporary society.

The continued evolution of tort has manifested itself in many situations as will be illustrated in the ensuing paragraphs. In R v Department of Health ex p Source Informatics10 the Court of Appeal seemed to have merged the tort of breach with principles of equity. This was in the
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[1932] AC 562 Rogers, W.V.H., (1989) Winfield & Jolowitz on Tort: 13th Edition, London, Sweet & Maxwell, p72 8 [1865] 3H & C774 9 [2004] UKHL

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matter where the issue of confidentiality of the patients anonymous information was under determination and the court whilst acknowledging that the action for breach of confidence lies in the law of tort also reviewed the cases which had been decided on equitable principles. Technological developments have continued to have an impact on the evolution. Print media and electronic media has brought new forms in which one may defame, libel or slander, for instance in Sata v Post Newspaper & Another11 the plaintiff had brought an action for libel, alleging that the defendant had published material injurious to the plaintiffs personal, private, official and political character. In Phiri v The Programme Manager Radio Maria Chipata (unreported) the plaintiff was seeking damages for the material broadcasted on the defendants radio station. Developments in digital technology have seen the emergence of the new tort of cyber-trespass that provide remedies against intrusions into individuals or companies websites. In Ebay Inc. v Bidders Edge Inc. the court based its reasoning on the common law tort of trespass to chattels in establishing that there was concrete harm to the plaintiff. Other similar cases include Oyster Software Inc. v Forms Processing Inc in which it was alleged that the defendants copying of the meta-tags constituted trespass to chattels. In Intel Corp v Hamidi there was a trespass action on the defendant for his continued sending of unwanted bulk email messages. These cases have shown how the trespass to personal property can been extended to new forms of communications such as the internet and can be used in the protection of websites and web services. Advancements in biotechnology have also given rise to the emergence of the controversial tort claims for wrongful conception, wrongful birth and wrongful life13. These claims arise from the medical personnels negligent failure to properly undertake vasectomy or tubal ligation operations that resulted in unwanted pregnancies or negligent failure to properly interpret genetic tests and the resulting inability by the would-be parents to make informed decisions whether to terminate a pregnancy where a child is subsequently born with serious genetic defects. In some instances old torts have been revived. In Three Rivers DC and Others v Bank of England (No.3)14 the unusual tort of misfeasance in public office was revived in order to provide remedies
[2001] QB 424 [1994] S.J. 204 (SC) 13 Roth,R. Congenital disabilities and the Law, in Clinics and Perinatology, pp263
11 10

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to the customers that suffered financial losses after the collapse of the Bank of Credit and Commerce International (BCCI). The House of Lord dismissed the appeal on ground that the public officer could only be held liable for the tort of misfeasance if he or she acted knowingly or recklessly in disregard to the likelihood to cause injury. Notwithstanding this ruling the basic elements of the tort were confirmed as two limbs- that there should be malice with the intention to injure and that the defendant should have knowledge that his or her conduct was unlawful. In countries like the United Kingdom, the implementation of the Human Rights Act 1998 has had an impact in the way the judges hear tort cases. The judges are now required to ensure that the common law is compatible with the Convention rights, this has brought about many evolutionary changes in tort. Some of the prominent rights as far as tort is concerned include right to liberty and security, freedom of expression, freedom of assembly and association etc.

Similarly there have been evolutionary changes in other jurisdictions such as the USA. The scope of tort liability has been expanding dramatically with the growing acceptance of the notion that more extensive tort liability would serve to compensate injured parties and reduce the level of accidents. The primarily based common law was originally chiefly concerned with making injurers pay for the losses of their victims with little emphasis on fault and negligence, until the 19th century when negligence was established as the basis for tort liability. However strict liability continued to apply in certain cases such as injuries caused by wild animals kept as pets. The turn of the 20th century saw public policy increasingly emphasize victim compensation and accident reduction. This further played an important role in the evolution of tort law and policy. The shift away from tort law to public compensation system led to more thought about how tort liability could be improved or better applied in other situations like in enhancing social welfare. The evolutionary changes have continued with courts moving rapidly toward a standard of strict liability for defective products, negligence now taking into account the fact that manufacturers often have more liability than consumers to void accidents. Strict products liability has emerged in response to the mass production and marketing of increasingly complex products.

In the Germany jurisdiction for example, the tort law began with the introduction of the strict liability rule for railway accidents by the Prussian Railway Law in 1838. This was a complete
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[2000]2 All ER 1 HL

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break with the tradition of tort law which was historically based on the negligence rule. The coevolution of technological and legal changes triggered off a trial and error process of legal innovations that resulted in the present day broad diffusion of the liability rule in their tort law. As indicated in the preceding paragraphs tort law has primarily been common law based, however legislation has also played a role in its evolution. Lately we have seen legislatures beginning to make tort law. In Zambia the tort of negligence has such enactments as contributory negligence in section 10 of the Law Reforms (miscellaneous) Act Chapter 74; defamation tort has The Defamation Act Chapter 68 and economic torts have The Trade Marks Act Chapter 401. We have also seen how such statutes such as Patents Act Chapter 400 and Copyright Act Chapter 406 are shaping the tort low particularly with regard to intellectual property rights. Notwithstanding the emerging of new tort responding to societal changes, the evolution has had its share of difficulties as has been noted. In Wainwright & Another v Home Office16 Lord Justice said that I foresee serious. conceptual problems in the judicial development of a blockbuster tort vaguely embracing such a potentially wide range of situation..I am not even sure that anybody...really wants the creation of new tort which could give rise to as many problems it is sought to solve. In First National Commercial Bank plc v Humberts (a firm)17 it was noted that this is not a sound basis for the development of a practical and self consistent law of negligence.the rules.tend to push the evolution of substantive law in the wrong direction.

This paper has looked at the evolution of the law of tort and given an understanding of the purposes of tort law and its relationship to the changing societal goals and needs, and seen how the reforms are not only based on judicial process but have been impacted by legislation. The emerging new forms of torts are essentially arising as we seek new remedies for the various types of clashes arising in our society. The historical perspective we considered has given us an insight into how those before us have addressed the questions that had been raised and how these serve as examples from which todays judges, jurors and legislators and can learn and become better placed in developing and expanding the law in response to the changing society.
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[2003] All ER Vol. 3 [1995] All ER Vol. 2

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BIBLIOGRAPHY Brazier M., Street on Tort, 8th Ed. (London: Butterworths, ) Clerk & Lindsell on Torts, The Common Law Library Dobb, Hayden & Bublick, Torts and Compensation: Personal Accountability and Social Responsibility for Injury, 6th Ed. Halsburys Laws of England, Fourth Edition, Volume 45 Number 3, 14th Ed. (London: Sweet & Maxwell) Rogers W.V.H., Winfield & Jolowitz on Tort, 13th Ed. (London: Sweet & Maxwell, 1989) Roth R., Congenital disabilities and the law in Clinics in Perinatology Volume 34 Issue 2, Pages 263-273. Smith, K. and Keenan, D. English Law, 7th Ed. (London: Pitman Publishing, 1982) Stephen Chapman, Statutes on the Law of Torts, (London: Butterworths, 1962) Street T. A., The Theory and Principles of Tort Law, (USA: Edward Thompson Co. 1906; 1999 reprint)

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