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 ‘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:

  • 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 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.

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, occupiers liability, defamation, trespass and breach of confidence.

Remedies in tort

There are two key remedies available for claimants:

  • Damages
  • Injunction

Damages

Damages provides 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, ie. 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.

Defences

The following are defences 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 defence 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, ie. he has consented to the conduct (which otherwise would have amounted to a tort). For this defence 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.