Unpicking Torts: Elements, Conditions of Actionability and Standing Rules

Abstract

There is a clear tendency among judges and scholars to regard torts like chemical compounds: as things comprising a fixed list of elements (such as duty, breach, causation etc). But it is sometimes said that claimants in tort cases must also demonstrate that a condition of actionability has been met, or that a standing requirement within a particular tort has been satisfied. The use of these other terms raises two important questions. First, how a tort's elements may be distinguished from (1) conditions of actionability and (2) standing rules; and secondly, why any such distinction matters. This article addresses these questions and makes three key claims. The first such claim is that conditions of actionability may indeed be distinguished from elements. The second is that rules described as standing requirements within certain torts have no discrete juridical identity. The final claim is that appreciating the distinction between elements and conditions of actionability is important in both practical and theoretical terms.