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 ‘tortfeasor’ that unfairly results in loss or harm to another. This makes the tortfeasor 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 law 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 tortfeasor. 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:
- The Crown
- 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?
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:
- The negligent party owed a duty of care to the victim.
- There was a breach of the duty of care.
- Causation (the negligent caused the injury/loss).
- 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 a objective test, and considered whether the behaviour 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 ‘behaviour’ – ie. 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 defence: the defendant is expected to discharge his or her legal duty as a reasonably skilled and competent person.
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.
For more information on:
- Economic torts
- Other claims in tort
- Remedies in tort
- Vicarious liability
- Contributory negligence
- Volenti non fit injuria