TORT, the technical term, in the law of England, of those dominions and possessions of the British empire where the com mon law has been received or practically adopted in civil affairs, and of the United States, for a civil wrong, i.e., the breach of a duty imposed by law, by which breach some person becomes en titled to sue for damages. A tort must, on the one hand, be an act which violates a general duty. The rule which it breaks must be one made by the law, not, as in the case of a mere breach of contract, a rule which the law protects because the parties have made it for themselves. On the other hand, a tort is essentially the source of a private right of action. An offence which is punishable, but for which no one can bring a civil action, is not a tort. It is quite possible for one and the same act to be a tort and a breach of contract, or a tort and a crime; it is even pos sible in one class of cases for the plaintiff to have the option— for purposes of procedural advantage—of treating a real tort as a fictitious contract ; but there is no necessary or general connec tion. Again, it is not the case that pecuniary damages are always or necessarily the only remedy for a tort ; but the right to bring an action in common law jurisdiction, as distinct from equity, matrimonial or admiralty jurisdiction, with the consequent right to damages, is invariably present where a tort has been committed.
This technical use of the French word tort (which at one time was near becoming a synonym of wrong in literary English) is not very ancient, and anything like systematic treatment of the subject as a whole is very modern. Since about the middle of the 19th century there has been a current assumption that all civil causes of action must be founded on either contract or tort ; but there is no historical foundation for this doctrine, though modi fied forms of the action of trespass—actions in consimili case, or "on the case" in the accustomed English phrase—did in practice largely supplant other more archaic forms of action by reason of their greater convenience. The old forms were designed as penal remedies for manifest breach of the peace or corruption of jus tice ; and traces of the penal element remained in them long after the substance of the procedure had become private and merely civil. The transition belongs to the general history of English law.
In England the general scope of the law of torts has never been formulated by authority. But there is no doubt that the duties
enforced by the English law of torts are broadly those which the Roman institutional writers summed up in the precept Alterum non laedere. Every member of a civilized commonwealth is en titled to require of others a certain amount of respect for his person, reputation and property, and a certain amount of care and caution when they go about undertakings attended with risk to their neighbours. Under the modern law, it is submitted, the question arising when one man wilfully or recklessly harms an other is not whether some technical form of action can be found in which he is liable, but whether he can justify or excuse himself. This view, at any rate, is countenanced by a judgment of the Supreme Court of the United States delivered in The precise amount of responsibility can be determined only by full consideration in each class of cases. But what makes the law of torts effective, especially with regard to redress for harm suffered by negligence, is the universal rule of law that every one is answerable for the acts and defaults of his servants (that is, all persons acting under his direction and taking their orders from him or some one representing him) in the course of their employ ment. The person actually in fault is not the less answerable, but the remedy against him is very commonly not worth pursuing. But for this rule corporations could not be liable for any neg ligence of their servants, however disastrous to innocent persons, except so far as it might happen to constitute a breach of some express undertaking. We have spoken of the rule as universal, but, in the case of one servant of the same employer being injured by the default of another, an unfortunate aberration of the courts, which started from small beginnings in the second quarter of the 19th century, was pushed to extreme results, and led to great hardship. A partial remedy was applied in 188o by the Employ ers' Liability Act ; and in 1897 a much bolder step was taken by the Workmen's Compensation Act (superseded by later amend ment and extension now consolidated in an Act of 1925). The Workmen's Compensation Act includes cases of pure accident, where there is no fault at all, or none that can be proved, and therefore goes beyond the reasons of liability with which the law of torts has to do. In fact, it establishes a kind of compulsory insurance, justifiable only on wider grounds of policy.