Law of Torts

The nature of liability in tort

The word 'tort' is derived from the Latin word 'tortus' meaning wrong or crooked. A 'tort' in law
means a civil wrong. Tort law is thus primarily concerned with compensation for damages for
civil wrongs suffered as a result of another's acts or omissions. The civil wrong arises as a result
of breach of a duty imposed by law. Thus there are, for instance, duties not to assault another
person, not to trespass on another's land, not to take another's goods, and to take care not to
injure one's neighbor. Some duties are laid down by legislation; others are found in the common
law. The emphasis on a tort as a civil wrong distinguishes it from a crime. Crime and tort like a
tort, a crime is a breach of duty imposed by law. However, unlike a tort, a crime is considered a
'community' wrong. A crime therefore does not generally entitle the victim to an individual right
of compensation as such. It rather involves the imposition of punishment by the community
against the wrongdoer. Criminal law is therefore concerned primarily with punishing a
wrongdoer for wrongful acts. On the other hand, the law of torts is concerned largely with
compensating the person injured or damaged by a wrongful act or omission. Because both crimes
and torts arise from breaches of duties imposed by law, it is possible for a particular breach to be
both a tort and a crime. However not every tort is necessarily a crime. Since a crime is
considered a wrong against the community, criminal proceedings are, in theory, a contest
between the state and the wrongdoer or defendant in which the injured person or victim (as
complainant, if that person is still alive) merely becomes a witness for the state. On the other
hand, since a tort is a 'private wrong', in tort proceedings the injured person or victim, as plaintiff
in their private capacity, sues the wrongdoer or tortfeasor, as defendant, for compensation. In
spite of the differences between tort law and criminal law, it is important to note that there are
some similarities between the two areas of law. For instance, even though tort law is primarily
concerned with compensation, in some circumstances it may permit the imposition of punitive
damages against a wrongdoer. Similarly, under the criminal injuries compensation statutes in
Australia, it is possible for a victim of crime to be awarded some limited compensation. 

Contract and tort Like the law of torts, contract law is concerned with civil obligations.
However, unlike tort law, the law of contract is largely concerned with the enforcement of duties
that one person has by agreement, bound himself or herself to perform for the benefit of another.
Even though the law of torts is also concerned with breaches of duties, those duties are not
established by any agreement between persons but rather by the law itself. In some cases, a
breach of contract may also constitute a tort. However not every breach of a contractual
obligation is also a tort. Compensation Compensation is a monetary award made to a person
who has suffered a wrong or injury. 
Types of harmful activity for which the law of torts
provide

Intentional torts

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an
individual, and that do so. Intentional torts have several subcategories:

 Torts against the person include assault, battery, false imprisonment, intentional infliction of

emotional distress, and fraud, although the latter is also an economic tort.
 Property torts involve any intentional interference with the property rights of the claimant
(plaintiff). Those commonly recognized include trespass to land, trespass to chattels
(personal property), and conversion.
An intentional tort requires an overt act, some form of intent, and causation. In most cases,
transferred intent, which occurs when the defendant intends to injure an individual but actually
ends up injuring another individual, will satisfy the intent requirement. Causation can be satisfied
as long as the defendant was a substantial factor in causing the harm.

Statutory torts

A statutory tort is like any other, in that it imposes duties on private or public parties; however
they are created by the legislature, not the courts. For example, the European Union's Product
Liability Directive imposes strict liability for defective products that harm people; such strict
liability is not uncommon although not necessarily statutory.

Nuisance

Nuisance" is traditionally used to describe an activity which is harmful or annoying to others

such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private
nuisance) or the general public (public nuisance). The claimant can sue for most acts that
interfere with their use and enjoyment of their land. In English law, whether activity was an
illegal nuisance depended upon the area and whether the activity was "for the benefit of the
commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet. The
case Jones v Powell (1629) provides an early example, in which a person's professional papers
were damaged by the vapors of a neighboring brewery. Although the outcome of this case is
unclear, White Locke of the Court of the King's Bench is recorded as saying that since the water
supply in area was already contaminated, the nuisance was not actionable as it is "better that they
should be spoiled than that the commonwealth stand in need of good liquor".

Defamation

Defamation is tarnishing the reputation of someone; it has two varieties, slander and libel.

Slander is spoken defamation and libel is printed or broadcast defamation. The two otherwise
share the same features: making a factual assertion for which evidence does not exist.
Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as
rights to free speech in the First Amendment to the Constitution of the United States, or Article
10 of the European Convention of Human Rights. Related to defamation in the U.S. are the
actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process
and malicious prosecution are often classified as dignitary torts as well.

Business torts
Economic torts, which are also called business torts, are torts that provide the common
law rules on liability which arise out of business transactions such as interference with economic
or business relationships and are likely to involve pure economic loss. Economic torts
are tortious interference actions designed to protect trade or business. The area includes the
doctrine of restraint of trade and, particularly in the United Kingdom, has largely been
submerged in the twentieth century by statutory interventions on collective labor law and
modern competition law, and certain laws governing intellectual property, particularly unfair
competition law. The "absence of any unifying principle drawing together the different heads of
economic tort liability has often been remarked upon.
Circumstances in which liability imposed without fault
Liability without fault is a circumstance in which the defendant is held criminally liable for his
actions even though criminal intent is absent. In other words, cases of liability without fault
require only actus rues, without the men requirement. This runs directly counter to the usual
precept of criminal law in the United States, which holds that it is better to acquit a guilty person
than convict an innocent one. In cases of liability without fault, it is better to convict an innocent
person than acquit a guilty person. There are several lines of thinking behind this idea. First of
all, cases of liability without fault usually are usually only the most
minor misdemeanors and infractions, crimes by statute, crimes mala prohibit, in which little real
harm is done to society. Generally such crimes carry no social stigma with them and incur little
more than fines and, occasionally, a minimal amount of jail time. In addition to this, culpability
for such crimes can be very difficult to prove. Nevertheless, there remains an understandable
amount of controversy surrounding cases of liability without fault. First of all, and most
obviously, there is the outrageous (depending on how you look at it) injustice done to the
individual. To be charged and convicted of a crime you not only had no idea you committed, but
perhaps even had a deep and personal desire not to commit will leave a sour taste in anyone's
mouth. Libertarian arguments that the concept of liability without fault does more harm to
society than good are not to be immediately dismissed. Furthermore, it can be argued that
convicting a person for a crime he did not mean to commit cheapens the notion of criminal guilt,
and could encourage further criminal thoughts in those who otherwise would not have had them.

There are two kinds of liability without fault

Strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally
responsible for the consequences flowing from an activity even in the absence
of fault or criminal intent on the part of the defendant.
In the field of torts, prominent examples of strict liability may include product liability,
abnormally dangerous activities (e.g., blasting), intrusion onto another's land by livestock,
and ownership of wild animals. Traditional criminal offenses which require no element of intent
(men) include statutory rape and felony murder.
The concept of strict liability is also found in criminal law, though the same or similar concept
may appear in contexts where the term itself is not used. Strict liability often applies to vehicular
traffic offenses: in a speeding case, for example, whether the defendant knew that the posted
speed limit was being exceeded is irrelevant; the prosecutor need only prove that the defendant
was driving the vehicle in excess of the posted speed limit.
In the United States, strict liability can be determined by looking at the intent of the legislature.
If the legislature seems to have purposefully left out a mental state element (men rea) because
they felt mental state need not be proven, it is treated as a strict liability. However, when a statute
is silent as to the mental state (men rea) and it is not clear that the legislature purposely left it out,
the ordinary presumption is that a mental state is required for criminal liability. Strict liability
laws can also prevent defendants from raising diminished mental capacity defenses, since intent
does not need to be proven.

1. Certain products put people at risk of injury no matter how much care is taken to prevent
injury.

2. Consumers should have some means of seeking compensation if they’re injured while
using these products.

A classic example of strict liability is the owner of a tiger rehabilitation center. No matter how
strong the tiger cages are, if an animal escapes and causes damage and injury, the owner is held
liable. Another example is a contractor hiring a demolition subcontractor that lacks proper
insurance. If the subcontractor makes a mistake, the contractor is strictly liable for any damage
that occurs.

Negligence

Negligence is the failure to exercise the required amount of care to prevent injury to others. For
example, if you cause an accident that injures someone or damages their vehicle because you
were driving at an unsafe speed, then you could be sued for negligence.

In some cases, the law imposes absolute liability (aka strict liability) on specific parties without
regard to fault, and, therefore, obviates the need to prove fault in court. For instance,
manufacturers are held strictly liable for defective products that they manufacture.

Sometimes, the law designates other parties as being responsible, whether they are or
not. Imputed negligence results in vicarious liability, where the principal is responsible for the
acts of his agents. For example, employers have vicarious liability for the actions of their
employees. If an employee injures someone in the course of employment, then it doesn't matter
whether the employer could have done anything to prevent it—the employer will be held liable
regardless. Other instances of imputed negligence is through the effect of the family purpose
doctrine that holds parents responsible for the negligent acts of their children, or the dram shop
law, which holds the seller of alcoholic beverages liable for drunken patrons. If a patron drives
after drinking at a tavern, and subsequently kills or injures someone with his vehicle, then the
tavern owner can be held liable.

Sometimes, the act itself determines negligence. Under the doctrine of res is loquitur, (Latin term
for "the thing speaks for itself"), there are some actions so obviously negligent that the law
presumes negligence, such as when a surgeon operates on the wrong side of the body. The
defendant, in such cases, must prove that he wasn't negligent.

Requirements for Negligence

Most cases of negligence cannot be determined absolutely, for it depends on many factors. The
main measure used to determine whether an act was negligent is to consider what a reasonably
prudent person would do, given the age and knowledge of the tort feasor, and other relevant
factors.

Before a court will award damages, the presumed negligence must satisfy 4 requirements:

1. There must be a legal duty to perform or to use reasonable care;

2. There must have been a failure to perform that duty;

3. The plaintiff must have suffered an injury or a loss;

4. And the negligent act must have been the proximate cause of the injury. The proximate
cause is a cause that directly caused the loss or suffering so that if the proximate cause
didn't happen, then the harm would not have happened.

All 4 elements of negligence must be present before a court will award damages.

Defenses against Negligence

There are various factors that can either prevent a plaintiff from collecting damages or that will
reduce the amount awarded.

Contributory negligence is negligence that is caused by both plaintiff and defendant. If

the plaintiff contributed to his injury, then, in some states, the plaintiff will be prevented from
collecting any damages.
Comparative negligence allows the plaintiff to collect some damages, but it will be
reduced by the amount by which the plaintiff contributed to his own injury. There are 3 major
rules, which differ according to state law and according to the amount of contributory
negligence, that determine the amount that the plaintiff can collect.

1. The pure rule reduces the plaintiff's damages by the amount that he contributed to his
own injury. Thus, if a plaintiff has been judged to be 30% at fault, then his reward will be
reduced by 30%.

2. The 49 percent rule requires that the defendant be less than 50% responsible in order to
collect any damages, and any damages awarded will be reduced by the plaintiff's
contribution. Under this rule, only 1 party can collect where both parties are suing each
other.

3. The 50 percent rule permits the plaintiff to collect damages only if his share of the
negligence is not greater than 50%. In contrast to the 49 percent rule, both parties can
collect 50% of their damages from each other if both are judged to be 50% at fault.
However, if the degree of fault is anything but 50%, then only 1 party will be able to
collect damages, just as under the 49 percent rule.

The last clear chance rule modifies comparative negligence by allowing the plaintiff to collect
damages from the defendant, even if the plaintiff contributed to his injury, if the defendant had a
last clear chance to prevent the injury. In other words, could the defendant have prevented the
injury regardless of the plaintiff's negligence? If the answer is yes, then the plaintiff will still be
able to collect regardless of comparative negligence.

Finally, there is the assumption of risk—one assumes risk by engaging in an activity that is

inherently risky, and, therefore, should not be allowed to collect damages if an injury results by
engaging in the activity. Thus, if one plays racquetball without wearing goggles, and her
opponent hits the ball and injures her eye, she will be prevented from collecting damages from
her opponent, because by playing racquetball without wearing goggles, she assumed the risk that
she will suffer an eye injury or even lose an eye while playing.
The Law of Tort
What is a tort?

The law of tort is wide-ranging body of rights, obligations and remedies applied by the courts in civil
proceedings. It provides remedies relief for those who have suffered loss or harm following the wrongful
or negligent acts of others.

A tort is a civil wrong by the ‘tort feasor’ that unfairly results in loss or harm to another. This makes the
tort feasor liable to the other. Tort is distinguishable from two other kinds of law – criminal law
and contract law, and is dealt with by the civil courts.

Unlike tort, the criminal laws are wrongs against society and is comprised in legislation and prosecuted
by the authorities, and dealt with in the criminal courts. In contract law, the rights and obligations
between the contractual parties are governed by the contract itself and not by the law of tort.

However, sometimes the line is blurred between tort, crime and contract law. For instance, violent
offences against the person such as assault and battery can be prosecuted by the Crown; and a damages
claim can also be brought in the civil courts by the victim.

Parties to an action in tort

Anyone can sue in tort if they suffered harm or loss as a result of someone else’s civil wrong. There is the
potential for children to sue, including children who are born with disabilities due to harm inflicted prior
to birth; and even a husband and wife can sue each other.

Claimants can sue a wide range of tort feasor. The following are examples of different types of
individuals and other parties who can potentially face an action against them under the law of tort:

 Individuals

 The Crown

 Companies

 Employers

 Employees

 Independent contractors

 Occupiers of premises

 Individuals who have caused damage to another’s reputation

 Dangerous drivers
  Individuals in the medical profession

 Occupiers of recreational premises

What are the elements of the Law of Tort?

Negligence

Whilst there are different types of tort, negligence is by far the most common tort for which claimants
take legal action. There are four elements to the tort of negligence. Each of these must be present for a
claim to be successful:

1. The negligent party owed a duty of care to the victim.

2. There was a breach of the duty of care.

3. Causation (the negligent caused the injury/loss).

4. Damage or injury occurred.

Duty of care
The defendant in a negligence action must have owed a legal duty of care to the claimant. There is a
three-stage test to establish whether there was a duty of care:

 Is there a relationship of proximity between the parties?

 Was the injury to the claimant foreseeable?

 Is it fair, just and reasonable to impose a duty?

Breach of duty
For the tort of negligence to have occurred, the defendant must have breached the duty of care legally
imposed on them. The ‘reasonable man’ test is usually applied to ascertain whether the duty of care has
been breached. This is an objective test, and considered whether the behavior of the defendant fell below
the threshold of a “reasonable man”.

This will vary depending on the nature of the defendant. For instance, in a medical negligence case
following a surgical procedure, the ‘behavior’ – i.e. the skills – of a specialist surgeon will be expected to
be of a much higher standard than the skills of a junior doctor assisting. However, inexperience of itself
will not be a valid defense: the defendant is expected to discharge his or her legal duty as a reasonably
skilled and competent person.
Causation
Once a breach of the legal duty of care has been established, it must be shown that the loss, damage or
personal injury was caused as a result, whether directly or indirectly. The question is: but for the actions
or omission of the defendant, would the loss or harm have resulted?

Harm or injury
There must be some form of loss, damage or injury. This includes physical or mental personal injuries;
financial loss; or damage to property. It can also extend to emotional distress or embarrassment.

Economic torts
Economic torts are defined as torts that have inflicted pure financial loss on someone. A primary example
of an economic tort is ‘passing off’ in the course of business, whereby an individual or business attempts
to pass off their goods as the goods of another – relying on the substantial goodwill associated with the
original product or goods. A claim can be made for damages to compensate for the economic loss
suffered.

Other claims in tort

Tortious claims also include nuisance, occupier’s liability, defamation, trespass and breach of confidence.

Remedies in tort

There are two key remedies available for claimants:

 Damages

 Injunction

Damages

Damages provide financial compensation to the claimant for their losses. Damages can be broken down
into the following subcategories:

 Nominal: where a tort has been committed but the victim has suffered no loss.

 Contemptuous: where the claimant is successful but the court considers that it should not have
been brought and was without merit. A very small or derisory amount of damages may be ordered
in such cases.

 General: to compensate for non-economic damages such as pain and suffering and emotional
distress.
  Special: the claimant must plead these damages as part of the action and prove that the damage
was in fact suffered. For instance, damage to property and medical expenses.

 Aggravated damages: if the court decides that the tort was committed in a malicious manner, i.e.

 To harm the claimant’s character or question his dignity, then aggravated damages may be
awarded.

 Exemplary or punitive damages: these may be awarded when the court finds that the action
committed by the defendant is so serious that an example needs to be made of them.

Injunctions

In some cases, it may be appropriate to apply to the court for an injunction. An injunction is a court order
prohibiting or requiring a certain course of action to be taken. This can be in addition to a damages claim.

Defenses
The following are defenses to tort actions:

 Vicarious liability

 Contributory negligence

 Volenti non fit injuria

Vicarious liability

Where a tort was committed by an employee while undertaking his or her duties of employment, i.e. there
was a close and direct connection with the harmful act committed by the employee and what they were
employed to do, the employee can deny liability and claim that the employer was vicariously liable.

Contributory negligence
This is a partial defense used whereby the claimant is accused of acting in a careless manner at the
relevant time, and therefore contributed to the injuries or loss, which they have suffered.

Volenti non fit injuria

Volenti non fit injuria effectively means ‘consent’. It means that the claimant cannot complain about what
has happened on the basis he voluntary assumed the risk, i.e. He has consented to the conduct (which
otherwise would have amounted to a tort). For this defense to stand, it must be proved that the plaintiff
acted voluntarily with the other’s agreement, and it was made in full knowledge of the nature and extent
of the risk involved.

If you have suffered harm or loss as a result of someone else’s wrongdoing, take specialist legal advice as
soon as possible.