Development of Modern Negligence

The action of trespass was the starting point in the development of the law of torts.
By the 12 century
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 Trespass simply meant “wrong” – more formally it was an action used to deal with
direct and forcible interference with the interest protected –person, land or goods
 Peacekeeping function – its link with the criminal law.
 Whether a person could seek compensation for injury in the Royal Courts depended
upon whether their action fell within one of the recognised forms of writ (a command
on behalf of the King that a case be heard by the Royal Courts).
 The types of actions for which a writ could be issued were limited.
 The Court of Chancery was responsible for determining what matters were actionable
and issued the writs.
 If the alleged action did not fall within one of the recognised writs, then no action could
be instituted and the plaintiff was left without means of redress for the wrong – no writ,
no remedy.
 The earliest writs of trespass had the words ‘vi et armis’ (with force and arms against the King’s
Peace)
 This means they could only be issued where there had been violence against the King’s
Peace
 Other trespasses could only go to the baronial courts
 This restriction was aimed at reducing the number of cases that could go to the royal
courts
By the 13 century
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 ‘vi et armis’ began to diminish in effect as a new writ, trespass on the case, appeared, in which
the plaintiff had to set out the cause of action with particulars of the ‘special case’
 Two kinds of writs concerning wrongs between ordinary people:
 The writ of trespass;
 The writ of trespass on the case (the action on the case)
Each writ had different procedural implications.
 These writs allowed actions for negligence and breaches of contract to be brought within their
scope because the requirement of force had been abandoned
 The form of writ affected what court was competent to hear a matter, the method of
making the other party appear before the court, the proper form of pleading before trial
in answer to the claim, the proper mode of trial, and the available processes of
enforcement subsequent to a successful judgement against the defendant.
Each procedural pigeonhole tended to contain its own rules of substantive law.
 The wrong choice often left the plaintiff without redress.
 Their choice of writ was irrevocable.
 If they came to court with the wrong writ they were nonsuited and had to start again.
By the 14 century
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 A distinct separation between actions of trespass and actions on the case.

The Development of Negligence

 Prior to 1932, there was no such thing as a ‘tort of negligence’, rather there were simply many
torts, many of which included negligence as an issue within the general scope of action
 Third parties who suffered because of a breach of contract had no remedy, because they were
not a part to the contract and thus excluded by the doctrine of privity
Doctrine of privity - a contract cannot confer rights or impose obligations arising under it on any
person or agent except the parties to it. The premise is that only parties to contracts should be able to
sue to enforce their rights or claim damages as such.