We are pleased to feature this post from Mathilde Groppo, who is one of our PhD associates, and a PhD student at King’s College London.
In O’Reilly v Mackman, Lord Denning famously declared: ‘[i]n modern times we have come to recognise two separate fields of law, one of private law, the other of public law.’ The public life of private law seminar series specifically encourages a reflection around the interactions between the public and the private. The past decades have staged various debates on the nature of tort law; these debates are symptomatic of a shift of tort law towards the embracing of public concerns. To some extent, tort law has acquired a ‘public life’. This blog post endeavours to explore some of the factors that have brought about this shift from a strictly private to a more public nature of tort law.
To date, no satisfactory definition of a tort has been found. At university, it is often described as ‘the law of civil wrongs not arising out of breaches of contract or trust’; this is hardly an enlightening definition. Perhaps because of the impossibility of finding such a satisfactory definition, tort law is often defined negatively, by opposing it with criminal law. Blackstone elaborated that
The distinction of public wrongs from private, of crimes and misdemeanours from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanours, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity.
The confusion as to the distinctiveness of torts and crimes (and therefore, as to the private/public divide in the law of wrongs) is not new. In medieval England, no formal distinction was made between tort and criminal law. Tortious and criminal claims differed in that they offered different kinds of remedies and the goal of the claim (compensation or revenge) varied accordingly; such choice was left to the victim and determined under which set of laws the claim would be litigated.
In spite of difficulties in characterising a tort, it has historically generally been accepted that tort law is the law of private wrongs; its consequently private nature is attested by the fact that it is the claimant himself who initiates the proceedings. Further, tort law is characterised by its individuality – a particular defendant compensating a particular claimant for a particular wrong, with various elements (liability standards, causation, awards of damages) being individually assessed. How, then, did this fundamentally private area of the law come to acquire, to some extent, a ‘public life’?
From the 18th century onwards, history marked the development of the law of tort by developing and strengthening its public character in at least two ways. First, punitive damages were made available as a remedy, and their originally private nature shifted towards the modern public one. Second, the Industrial Revolution generated changes within the law of tort which led to the inclusion of broad social considerations within the scope of the decision whether or not to award damages.
Punitive damages have long been one of the remedies available in the law of tort. The jurisdiction to award punitive damages dates back at least to the 18th century. Their purpose, which is specifically to deter and to punish, has prompted them to be labelled a ‘quasi-criminal’ remedy, thus emphasising a public aspect of the law of tort. Such damages, however, were originally used to justify an award of damages over and above the plaintiff’s material harm, thus giving juries a wider discretion in their awards of damages. Historically, punitive damages were therefore a remedy of a private nature. It is only in the 1760s that courts started to justify an award punitive damages as serving another goal, that of punishing the wrongdoer. In practice, by the end of the 18th century, the goal of punitive damage awards oscillated between compensating immaterial harm and punishing the defendant. In the 19th century, English law expanded the scope of compensatory damages to include immaterial harm; the scope of punitive damage awards was then correspondingly reduced. This ultimately led courts to speak of them exclusively in terms of punishment and deterrence; nowadays, punitive damages are no longer compensatory. ‘Admitting into the civil law a principle which ought logically to belong to the criminal’ has had two major consequences. The first is obvious: it introduced into the law of tort objectives of retribution and deterrence, which usually belong to the criminal law. The second flows from the first: it has altered the scope of private law, introducing questions of public concern into disputes between private parties.
The industrialisation process also had a heavy impact on the nature of tort law. Because of the spreading of machinery, serious accidents became commonplace. This led in the 19th century to the development of liability insurance, originally as a mechanism of protection for employers against lawsuits from employees. Tort law, which had originally been built around the notion of fault, consequently became identified by the mid-20th century as serving goals of loss transfer (away from the victims of accidents) and loss spreading throughout society. Although the exact impact of insurance in the change in the nature of tort law is disputed, the understanding of tort as serving functions of deterrence and loss spreading undoubtedly led to the disentanglement of notions of moral fault and liability. It also introduced into the reasoning leading to tort verdicts factors not limited to the facts of the dispute between two private parties. By introducing broad social considerations into tort disputes, ‘tort suits … ceased to be “cases and controversies” adjudicated under law and became instead occasions for judges and juries to regulate behavior on a forward-looking basis. In sum, tort had transformed itself from private to “public” law, whereby it functioned to achieve “collective,” not “corrective,” justice.’
Alongside historical developments, the political climate also evolved. This led to the broadening of the scope of tort compensation, and to the development of new functions for tort law in relation to governmental accountability and protection of human rights.
In the aftermath of the Industrial Revolution, at the end of the 19th century, the political situation was changing in Britain. The tort system was flagged as inadequate to protect victims of accidents, be they industrial or not. Courts were flagged as having been too protective of employers in negligence actions brought by injured employees. The introduction in 1897 of the Workmen’s Compensation Scheme was the first step towards the advent of the welfare state. Such political change undoubtedly influenced the courts, which started to broaden the scope of compensation (see, for example, the enunciation of the ‘neighbour principle’; the limitations imposed on the defences invoked by employers; the determination of fault by reference to an external, objective standard).
The political climate influenced another change in the legal system: the move towards a rights based system. Various instruments, both international and national, now protect fundamental rights. The most important, in the past decades, is the Human Rights Act, which came into force in October 2000. It did not integrate all of the European Convention on Human Rights (ECHR) provisions, however both the Convention itself and the jurisprudence of the European Court of Human Rights has influenced the law of tort. In a speech given in May 2009, Lady Justice Arden identified various techniques through which Convention values influenced the development of tort law. The ECHR has sometimes inspired change in the law – for example, it broadened the scope of the action for breach of confidence as a remedy against the wrongful disclosure of confidential information. It has also been used as a way of developing some areas of the law, such as damages (thus guaranteeing a minimum level of governmental accountability – an issue raised during Seminar 2 at Warwick University) and as a cross-check mechanism, to check that ‘the common law remains up to date and in accordance with the standards to be expected of a modern democratic society’.
Some might debate whether tort was ever purely private. It has been argued that ‘what appears to be “private” can always be characterized as “public”’. As such, the vindicatory role of tort law as a means of exoneration from an accusation has an inherent public character – it will be achieved through a symbolic, public recognition by the court that the defendant harmed the claimant. Further, some advance the argument that private law is, to some extent, incoherent since state institutions such as courts and the legislature are involved in the promulgation and enforcement of rights.
Whatever one’s opinion on the original private character of tort law, it is clear that its evolution is one which tends to make it more and more public. The historical evolution of the law of tort is one of a shift towards a more public nature of this area of the law. Its awareness and receptiveness to political change also attests that its nature has changed. It is no longer purely private. The consequence of this shift is the creation of a grey area, which seeks to reconcile ‘the nineteenth century requirement of individual fault with the idea of a wider social responsibility’. In turn, this generates tensions that it is important to solve, in order to avoid the law becoming ‘more flexible but less just’.
 See: Wilkes v Wood (1763) Lofft 1 ; Huckle v Money (1763) 2 Wils 205.
 Lord Devlin in Rookes v Barnard  AC 1129.
 John C P Goldberg, ‘Twentieth Century Tort Theory’ (2003) 91 Geo L J 513, 522.
 Donoghue v Stevenson  AC 562.
 Ashley v Chief Constable of Sussex  1 WLR 398 at .
 Christian Turner, ‘Law’s Public/Private Structure’ (2012) 39 Fla St U L Rev 1003, 1005.
 Mark Lunney and Ken Oliphant, Tort Law: Texts and Materials (5th edn OUP, Oxford 2013) 17.
 Ernest Weinrib, ‘Punishment and Disgorgement as Contract Remedies’ (2003) 78 Chi-Kent L Rev 55, 103.