What Are the Virtues and Shortcomings of the Directness Requirement in Intentional Torts?

What are the virtues and shortcomings of the

directness requirement in intentional torts?

1. The law of tort has historically been, and still is, divided into two separate conceptual spheres. The division is between those torts which are actionable per se, and those which are actionable only after some damage has been proved[1].

2. Fortescue J in Reynolds v Clarke[2] gave the opinion that “If a man throws a log into the highway, and in that act it hits me, I may maintain trespass because there is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case”. This is the classic distinction between ‘trespass’ and ‘case’ – which is respectively whether the act complained of was direct or indirect. The modern law no longer permits ‘trespass vi et armis’ or ‘trespass on the case’[3] but instead distinguishes between ‘intentional trespass’ and ‘negligence’ – which is respectively whether the act was intentional or unintentional.

3. Trespass vi et armis and intentional trespass are actionable per se; trespass on the case and negligence are actionable only after damage has been proved. Bearing in mind that indirectness was not a requirement for actions to be brought ‘on the case’ (ie. direct damage could be brought under trespass or case), we are essentially concerned with when it is morally acceptable that something should be actionable per se. The essential issue then, is whether it is directness and intention[4], intention alone, or directness alone, that serves as the best test to determine when something should be actionable per se.

4. The utility of the directness requirement can be demonstrated by using a variation of Fortescue J’s example. X throws a log into the road and it lies there; walking along the road and not seeing the log, my foot comes into contact with it; I then proceed simply to step over the log and am not damaged by it. In this ‘story’, without any directness...