A. Introduction

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

Page 249

The tort of negligence is complemented by a number of independent, named (nominate) torts that deal with the intentional interference with the person, property (land and chattels), and economic interests. The tort of negligence and the intentional torts are, however, divided by more than the degree of culpability of the defendant’s conduct. There are significant differences in form, substance, and policy between these two regimes of tortious responsibility. Identification of some of these differences will enhance an understanding of the nature and function of the intentional torts.

The tort of negligence is a modern tort. It is essentially a product of the twentieth century. The basic structure of some of the nominate intentional torts is centuries old. While there was some modification of them in the twentieth century, the general outlines of liability have been clear for a long time.

The tort of negligence is a tort of broad and general application. It focuses primarily on the quality of the defendant’s conduct and is, consequently, inherently ubiquitous in its range of application. Most of the intentional torts are quite narrow in scope. They are restricted to closely defined fact patterns and particular categories of damage. This reflects the cautious and incremental development of the early common law, which focused on discrete categories of wrongs with clearly identifiable boundaries.

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The tort of negligence is characterized by general principles and the use of highly discretionary concepts such as reasonableness and foreseeability. The nominate intentional torts are defined by rules that tend to be more precise, narrow, and rigid than the negligence principles. Indeed, some seem to have been elevated to a status akin to statutory provisions.

The tort of negligence underwent a transition in the twentieth century from a limited number of duties of care arising from discrete categories of relationships to an unlimited number of duties arising from a general conception of relationships based on the reasonable foreseeability of harm to others. This process has not occurred in the intentional torts. The courts have been slow in generalizing and integrating the discrete intentional torts into a more coherent and cohesive system of general principles.1The tort of negligence is dynamic, expansionary, and largely reflective of current public attitudes and policies. It displays a vitality and capacity for vigorous growth...

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