New Torts

One of the most enduring themes regarding tort law is that it is a dynamic institution that adapts in response to evolving social conditions and emerging forms of wrongdoing. Thus, centuries ago Pratt LCJ said that ‘torts are infinitely various, not limited or confined’. In the current age, Hoffmann J wrote that tort law ‘is not static’ and added ‘that new forms of tort may develop’. Torts scholars agree. For example, John Fleming observed that:‘tortious liability is constantly expanding and there is ample evidence that a plaintiff’s claim is not necessarily prejudiced because he is unable to find a specific label for the wrong of which he complains. New and innominate torts have been constantly emerging in the long course of our history and the courts have shown no inclination at any stage to disclaim their creative functions, if considerations of policy pointed to the need for recognising a new cause of action’. Although the courts have long been in the business of updating the list of civil wrongs, the process by which this occurs has received scant attention and certainly much less than it deserves. There is, of course, a large literature that considers whether particular torts should be welcomed into the fold. Thus, a substantial body of learning exists on whether spoilation of evidence and invasion of privacy should be recognised as torts. But this literature does not grapple with the process by which the courts create torts. Accordingly, this chapter’s purpose is to cast some light on that topic. Although legislatures can and often do create torts too, the recognition of new torts by the courts involves different issues, largely because of the restrictions to which the courts but not Parliament are subject. This chapter’s focus is on the creation of torts at common law. In terms of the structure of the chapter, it begins by examining how new torts can be identified (Section II). As we will see, it is often unclear whether one is dealing with a novel tort or an extension to an extant one. Attention is then turned to a range of instances where the courts have established new torts or declined to do so (Section III). Thereafter, regard is had to a sample of reasons that the courts have given both in favour of and against establishing new torts (Section IV). A wide range of reasons have been offered most of which are, as we will see, unconvincing. The final substantive part of the chapter offers some short observations regarding the other end of tort law’s lifecycle, namely, the process by which torts die (Section V)