The AIMS, scope and

the FUNCTIONS of
tort law
The Aim of the law of tort
The Aims of Tort

COMPENSATE

AIMS
DETERRANC
E
The aim of the law of torts is twofold:

1. To compensate someone who has suffered a wrong at the hands of the defendant;

AND

2. To deter persons from acting in such a way that another person’s rights are
infringed.
1. Compensation

 Clearly a person who has suffered injury is entitled to financial compensation

which is intended, so far as possible, to put them in the position they would have
been in but for the wrongdoing of the defendant.

Position parties would

have been TORT committed DAMAGE

CLAIM
 The award of damages can also be regarded as ensuring that an injured party
receives justices in that loss caused by the tort.
 Q: Is money in reality compensates all losses? Eg: death of loved one?
 Equity and common law remedies. (shall be discuss in detail in chapter of
Remedies)
 ALTERNATIVE METHOD OF
OBTAINING COMPENSATION
 While a person may be able to bring a legal action to seek a remedy for some
injury or damage which has been suffered, this can fraught with difficulty.
 Over recent years, other methods to resolve issues have been developed so
that there are now various method of ADR available. These includes:
1. Arbitration
2. Adjudication
3. Conciliation
4. Medition

 Each may be relevant in the context of torts: eg: local authorities to dealt
with complaints (conciliation and mediation).
Insurance

 The purpose of insurance from a defendant’s point of view is to

protect them from personally having to foot the bill.
 From claimants perspective, the fact that a defendant is insured, will
mean that there are resources from which any damages will be met.
 As the level of damages for personal injury can be very high, insurance
is compulsory in certain circumstances. Eg: Road Traffic Act 1988
makes third party insurance compulsory for all motor vehicles.
 Individual may choose to obtain no-fault insurance to protect
themselves and / or their property in the event of accidental damage.
Insurance

 Insurance play important role in the law of tort, more often, damages
awarded in tort are paid out by insurance companies
 The judges are of course aware that many awards of damages will in
fact be paid by insurance companie and that individuals may have
chosen to protect themselves against misfortune.
 This may in some cases influence the way in which a case is
approached.
 In the context of road accidents, the courts can impose a very high
standard of care.
 There are basically 2 types of insurance policies that operates:
1. First-party insurance
-Covers the loss incurred by “the insured” from the risk described in
the policy.
2. Third-party insurance
-Covers “the insured” from liability towards third parties.

Articles:
RECEIVING BOTH TAKAFUL COMPENSATION AND DAMAGES FOR PE
RSONAL INJURY IN TORT LITIGATION: 
AN ENGAGEMENT TO UNJUST ENRICHMENT? 
[2016] 1 LNS(A) lxxiii, Current Law Journal (CLJ)
MUHAMAD ABRAL BIN ABU BAKAR, JASRI JAMAL
Compare and Contrast the aim in CIVIL
LAW and CRIMINAL LAW
with regards to compensation.
2. Deterrence

 The deterrence effect of torts is debatable.

 This also because of the principle that “damages awards” shall not be punitive
(punishing in nature).
 Only in certain tort, for example in the TORT OF DEFAMATION the damages
may include punitive element. The rest sticks to the general rule which damages
shall not be punitive.

 How could tort law have deterrence effect to the society?

THE SCOPE OF THE LAW OF TORT
THE AREAS IN LAW OF TORTS

1. An Overview on the Law of Tort 12. Special Duties/ Categories

2. General Negligence and Related Issues 13. Occupier’s Liability: Occupier’s Liability
3. General Negligence: Elements and Act 1957 & Occupier’s Liability Act
Development of Duty of Care 1984
4. General Negligence: Liability for Failing to 14. Defamation
Act (Omission) 15. Nuisance
5. General Negligence: Breach of Duty of Care
16. The Rule in Rylands v Fletcher
& Medical Negligence
17. Vicarious Liability
6. Causation and Remoteness
7. Special Duties/ Categories 18. Employer’s Liability

10. General and Specific Defences 19. Intentional Torts

11. Remedies 20. Emerging Torts

THE INTERESTS PROTECTED UNDER
TORT:
 Common law develops incrementally by virtue of doctrine of precedent.
 The category of interests protected under tort developes incrementally as well.
 In broad terms, the law of tort protects the following:-
1. Personal security
2. Property
3. Reputation
4. Economic interest
 Reference are made to various chapters for more detail.
 Having studied the chapters, we will understand what category of interest does
such tort protects.
 Example of torts: Tresspass to land, Negligence, Defamation, Occupier’s Liability,
etc.
1. Personal Security

 Personal security is most obviously protected under tort

 Examples of tort that protects personal security is tort of trespass (trespass to
person and trespass to land) - How?
 Tort of negligence also play part in ensuring individual does not suffer harm by
unreasonable acts or omission of others –How?
 Nuisance helps to protect an occupier of land from activities on neighbouring land
which are detrimental to health or comfort. – Example?
 Product liability: protects individual from defective goods. Eg- Foods, beverages,
contact lenses, contraceptive device (condoms), jeans?
2. Property

 Property is protected by many torts.

 Torts of trespass to land and interference with goods offers protection on one’s
property. Trespass to land dealt with real property. – Mechanism?
 Tort of nuisance and Rylands v Fletcher also help to provide remedy for wrongful
interference with the use of land / damage caused to land. The damage in this
case had caused by some activity or omission on wrongdoer’s land. Eg: in
Rylands v Fletcher, the neighbouring land keeps many crocodiles at the backyard
and such crocodile escapes to your land.
 Negligence: protects property where damaged is the result of failure to take
reasonable care. Eg: motor vehicle accident
3. Reputation

 A person’s reputation is protected by the tort of defamation

 This area is now govern under Defamation Act 2013.
 Inter alia, the claimant in the action for defamation must prove that there is
substantial loss had been resulted by the defamatory materials.
 Eg: Mc Libel cases – Mc Donald sales dropped as consequence. The common law
principle codified in the new statute.
 This area also influenced by European Convention on Human Rights – Right to
privacy? Freedom of speech & expression?
4. Economic loss

 Economic loss is an oddity (Chris Turner, 2014)

 Damages on economic loss are calculated to take account of financial loss
sustained by the victim of a tort,
 However there are restriction on the availability of the claim in negligence which
described as “pure economic loss”.
 The economic torts of deceit, malicious falsehood, passing-off and interference
with trade, may ensure that a business is protected from unfair competition.
(Economic loss will also be compensated where the law of contract can be used).
 Its rather restrictive to control the floodgates of litigation.
COMPULSORY READING
Read the followings:-

 Street on Tort (14th edition)

 Section 3 Protected Rights and Interest (page 7-14)
 Section 4 Theoretical Persepctives on Tort Law (Page 15-20)