Lecture on “The Law of Tort or the Law of Torts?” and Book Signing for Cros of Justice by Mr. Justice Kemal Bokhary GBM

Lecture on “The Law of Tort or the Law of Torts?” and Book Signing for Cros of Justice by Mr. Justice Kemal Bokhary GBM

Is there a law of tort or only a law of torts? Two of the most, if not the two most, highly regarded writers on tortious liability differed on that question. Sir John Salmond maintained that outside a number of specific torts, no tortious liability exists. His view is that there is only a law of torts. Sir Percy Winfield maintained that it is a tort to cause harm to other persons in the absence of any legal justification or excuse. His view is that there is a law of tort. Trying to harmonize the two views is worthwhile. The effort alone would enhance our understanding of the law of tortious liability, our ability to apply it and our capacity to participate in its development. There is no wholly satisfactory definition of “tort”. An informative answer to the question “What is tort?” can begin by saying that there is such a thing as the law of tort, and continue by giving examples and illustrations, referring to the operation of specific torts. Such an answer spares a thought for the Salmond view while embracing the Winfield view. Remedying injury due to mischief is the motif. Common law tort’s history is long, although not nearly as long as Chinese tort law’s history. Tort law is essentially judge-made. There is some overlap between tort and crime and between tort and breach of contract. While primarily compensatory, tort damages can also be vindicatory and/or deterrent. Judges have said so with reference to various torts. In stating what is essential to an action in tort, judges have often done so in ways supportive of the Winfield view. To understand common law tortious liability, it helps to look at it together with comparable liability under Islamic jurisprudence and codes like the Corpus Juris Civilis and the Code Napoleon. When different torts clash, a “neutral umpire” is needed, and to found in something wider than the different torts in the contest. Governed by generalities, tort law accommodates specificities. We can accept Winfield’s view while seeing Salmond’s point. Law must keep pace with the times. To that forward-looking purpose, Winfield’s thinking seems better suited than Salmond’s.

Cases

  • Hulle v Orynge (1466) Year Books, Michaelmas, 6 Edward IV, folio 7a placitum 18
  • Aldred’s Case (1610) 9 Co Rep 57b
  • Ashby v White (1703) Ld Raym 939
  • Wilkes v Wood (1763) Loft 1
  • Barwell v Brooks (1784) 3 Doug 371
  • Du Bost v Beresford (1810) 2 Camp 511
  • Sears v Lyons (1818) 2 Stark 317
  • Richardson v Mellish (1842) 2 Bing 229
  • Rogers v Rajendro Dutt (1860) 8 Moo PC 209
  • The Maharaj Libel Case (1862) Bombay Gazette
  • Mogul Steamship Co v McGregor, Gow & Co (1889) 23 QBD 598
  • Stanley v Powell [1891] 1 QB 85
  • Neville v London “Express” Newspaper [1919] AC 368
  • Weld-Blundell v Stephens [1920] AC 956
  • Donoghue v Stevenson [1932] AC 562
  • Trail Smelter awards (1938, 1941) RIAA ii 1005
  • Rondel v Worsley [1969] 1 AC 192
  • Enderby Town Football Club v Football Association [1971] Ch 591
  • Broome v Cassell & Co Ltd [1972] AC 1027
  • Davy v Spelthorne Borough Council [1984] AC 262
  • Henderson v Merrett Syndicates Ltd [1995] 2 AC 145
  • Smith New Court Securities Ltd v Citibank NA [1997] AC 254
  • Chen Li Hung v Ting Lei Miao (2000) 3 HKCFAR 9
  • Re Resource I (2000) 3HKCFAR 187
  • Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd (2002) 5 HKCFAR 569
  • Arthur JS Hall & Co v Simons [2002] 1 AC 615
  • Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122
  • State Farm Mutual Automobile Insurance Co v Campbell 538 US 1 (2002)
  • Campbell v MGN Ltd [2004] 2 AC 457
  • Commissioners of Customs & Excise v Barclays Bank [2005] 1 WLR 2082
  • WM Morrisons Supermarket plc v Various Claimants [2020] AC 989
  • Lungowe v Vedanta Resources plc [2020] AC 1045
  • JP SPC 4 v Royal Bank of Scotland International Ltd [2023] AC 461
  • Abdul Wadood v Saif-ur-Rahman CR No 591-M-2011 (15 March 2023)
  • Fearn v Trustees of the Tate Gallery [2024] AC 1
Books
  • John Webster: The Duchess of Malfi (John Waterson, 1623)
  • Co Litt 338a
  • 2 Inst 55
  • John Locke: Two Treatise of Government (Peter Laslett ed) (Cambridge University Press, 1988)
  • Samuel Johnson: A Dictionary of the English Language (printed by W Strahan, 1755)
  • Blackstones’ Commentaries (Clarendon Press, 1765), Book 1
  • J D Mayne: A Treatise on the Law of Damages (H Sweet, 1856)
  • Holmes’ Common Law (Little, Brown & Co, 1881)
  • Salmond on Torts (Sweet & Maxwell, 1907)
  • P H Winfield: Text-Book of the Law of Tort (Sweet & Maxwell, 1937)
  • Theodore Plunckett: A Concise History of the Common Law 4th ed (Butterworths, 1948)
  • A R Radcliffe-Brown: Structure and Function in Primitive Society (Macmillan, 1952)
  • Robert Rouland: Legal Anthropology (Philippe G Planel translation) (Athlone Press, 1994)
Reports and Articles
  • Lord Mersey’s Report on the Sinking of the Titanic, 7 August 1912, Cmnd 6352
  • P H Winfield, “Public Policy in the English Common Law” (1928-29) 42 Harvard Law Review 76
  • A L Goodhart, “The Foundation of Tortious Liability” (1938) 11 Modern Law Review 1
  • Ye Lin, “Tort System in China” (Li Xiaoming and Henry Pitney translation) (1989) 52 Law and Contemporary Problems 143
  • Marsha K Ternus, “Liability for the Escape of Animals” (1980-91) 30 Drake Law Review 257
  • D J Siepp, “The Distinction between Crime and Tort in the Early Common Law” (1996) 78 Boston University Law Review 59
  • Lord Scott of Foscote, “Damages: an Area of Incoherence?” The Common Law Lecture Series 2006-2007 (University of Hong Kong, 2008) 1
  • FXB/DPRI Case Series 5, April 2017 (Satchit Balsari, Leah Van Vaerenewyck,Vera Sistenich and Jennifer Leaning)
  • E G West, “Refining Constitutional Torts”, (2025) 134 Yale Law Journal 85
Codes
  • Corpus Juris Civilis
  • Code Napoleon

About the Speaker:

The Honorable Mr. Justice Syed Kemal Shah Bokhary, GBM

Register here to attend the lecture on or before 5 September 2025, 5:00pm (Hong Kong Time).

*CPD credits are available upon application and subject to accreditation by the Law Society of Hong Kong (currently pending).

Date

09 Sep 2025

Time

5:30 pm - 6:30 pm

Location

The CUHK Graduate Law Centre
Graduate Law Centre 2/F, Bank of America Tower, 12 Harcourt Road Central, Hong Kong

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