Whether unjustifiable harm automatically constitute tort?
It is indeed inconsistent with the established authorities and principles of tort
law to contend that the infliction of any and all "unjustifiable harm"
automatically constitutes a tort.
While the overarching aim of tort law is to provide remedies for civil wrongs
that cause harm, it does not operate on a vague, overarching principle that
any harm deemed "unjustifiable" is actionable. Instead, tort law has
developed as a collection of specific, named torts, each with its own defined
elements that a claimant must prove to establish liability.
Here's why the contention is inconsistent with legal authorities:
No General Tort of "Unjustifiable Harm": Anglo-American common law
systems (including those in the UK, US, Canada, Australia, and India) do not
recognize a general, all-encompassing tort of "unjustifiable harm" or
"unreasonable infliction of harm." If such a broad tort existed, it would create
immense uncertainty and potentially open the floodgates to litigation for
every perceived wrong or instance of hardship.
Requirement for Specific Torts: To succeed in a tort claim, a plaintiff must
demonstrate that the defendant's conduct falls within one of the recognized
categories of torts. These include, but are not limited to:
Negligence: Requires proof of a duty of care, breach of that duty, causation,
and resulting damage that is not too remote.
Trespass (to land, person, or goods): Involves direct interference with
the plaintiff's rights.
Nuisance (public or private): Concerns unlawful interference with the use
or enjoyment of land, or with public rights.
Defamation (libel and slander): Protects reputation against false
statements.
False Imprisonment: Unlawful restraint of a person's liberty.
Deceit (Fraudulent Misrepresentation): Requires a false representation
made knowingly or recklessly, intended to be relied upon, and which is relied
upon, causing loss.
Economic Torts: Such as inducing breach of contract or conspiracy.
Each of these torts has specific elements, established through centuries of
case law and sometimes modified by statute. Harm alone, even if
subjectively "unjustifiable," is not sufficient if the elements of a recognized
tort cannot be met.
The "Pigeonhole" Approach (Historically): Historically, tort law
developed through specific writs. If a claimant's grievance didn't fit into an
existing writ (or pigeonhole), there was often no remedy. While modern tort
law is more flexible, the principle remains that liability is generally founded
upon established causes of action. New torts emerge very slowly and
cautiously through judicial development, often by analogy to existing ones,
rather than through the application of a broad principle of unjustifiable harm.
Policy Considerations and Judicial Restraint: Courts are generally wary
of creating new areas of liability too readily for several reasons:
Certainty and Predictability: Individuals and businesses need to be able
to understand their legal obligations and potential liabilities. A vague tort of
"unjustifiable harm" would undermine this.
Floodgates of Litigation: Courts fear being overwhelmed by claims if the
bar for liability is set too broadly or vaguely.
Legislative Prerogative: The creation of new grounds for liability is often
seen as a matter best left to Parliament or the legislature, which can
consider broader social and economic implications.
Interference with Legitimate Activities: Many lawful activities might
incidentally cause some form of "harm" or inconvenience to others (e.g.,
lawful business competition leading to another's financial loss). Tort law does
not generally intervene unless the conduct falls into a recognized category
like unlawful means conspiracy or inducing breach of contract.
Damnum Sine Injuria: This Latin maxim means "damage without legal
injury." It encapsulates the idea that a person may suffer actual harm or loss,
but if no established legal right has been infringed or no recognized tort
committed, the law provides no remedy. For example, a business might
suffer financial loss due to legitimate competition from a rival. While this is
harmful to the business, it is generally not "unjustifiable" in a way that
founds tortious liability, as there is no general right to be free from
competition.
The "Unjustifiable" Element within Specific Torts:
It's important to note that the concept of "unjustifiability" or
"unreasonableness" is often a component within specific torts. For example:
In negligence, the breach of duty is assessed by whether the defendant
acted as a "reasonable person" would have in the circumstances. Failure to
do so can be seen as unreasonable or unjustifiable conduct.
In nuisance, the interference must be "unreasonable."
Some torts require "malice" or improper motive, which inherently involves an
element of unjustifiability.
However, this is different from saying that "unjustifiable harm" itself is the
tort. The "unjustifiability" is assessed according to the specific criteria and
tests laid down for that particular tort
