Tort Law concerns the civil liability for the wrongful infliction of injury by one person upon another. Its objects are monetary compensation or damages. The problem with Tort is that there is no single principle of liability. It is not also the sole sources of monetary compensation for harm. Furthermore, the same harm which is the basis of tortuous liability can in some cases be pursued through the criminal justice system. You need not be perplexed. We are not going into detailed study of law of tort. However, we shall discuss some key topics or specific torts like negligence, defamation etc, and conclude by reference, to vicarious liability, defences and remedies.
Overview of Torts
By now you would have had some appreciation of the difference between torts, crimes and contracts. Can you attempt to enumerate those differences without reference to the study guide? It will be realized that, like all other areas of law addressed in this course, it is not possible to do more than provide a very general outline of tort law. While the law of negligence will occupy the most space, other specific torts will be mentioned. In addition, the more common defences are dealt with briefly.
There is some debate amongst commentators in this area as to whether there is a law of tort or a law of torts. In other words, is there a unifying principle or set of elements that is common to all actions based on tort or is the law in this area just a group of miscellaneous wrongs that do not necessarily bear any relation to each other? Probably the answer lies somewhere in the middle. One of the leading legal writers in this field, Professor Fleming, suggest it would be ‘bold’ to attempt to reduce the law of torts to a single principle but on the other hand, it is incorrect to view it as nothing but ‘shreds and patches’. What is reasonably clear is that there are certain notions or features that are common to at least most torts. These are:
- Fault ;Almost all torts have at their core the idea that the defendant must have been at fault. The plaintiff will usually need to show that the defendant acted deliberately, intentionally, recklessly or negligently. Having said that, there are a small number of torts where strict liability is imposed. Here the required mental element, as is the case with the criminal law, is missing.
- Damages ; Once the plaintiff has established that the defendant was at fault then he or she must show that they suffered damages. This is critical because the central policy behind tort law is to compensate the plaintiff. Types of damages and the circumstances in which they arise are discussed later.
- Causation ‘ Not only must the plaintiff show loss or damages but that there is a link between the act and the damage, in the sense that the act causes the damage. Again this matter is further explored below.
- Policy ; The three matters outlined above, fault, damages and causation are likely elements of tort. These matters are discussed in more detail in respect to the individual torts. For the moment, however, the elements of a tort should be contrasted with the policy of tort law generally. You will recall that in the context of the application of precedent, the role of policy was identified as an important consideration in the development of the law. This is especially true in the area of tort law. As Professor Fleming puts it (1992, P 6):
… the adjudication of tort claims calls for a constant adjustment of competing interests. Opposed to the plaintiff’s demand for protection against injury in invariably the defendant’s countervailing interest not to be impeded in the pursuit of his own wants and desires. Hence the administration of the law involved a weighting of those conflicting interest on the scale of social value, with a view to promoting a balance that will minimize friction and be most conducive to the public good.
So tort law is seen as an instrument through which society is regulated. In that way it must take into account social and economic practicalities. An example of this is the tort of trespass to the person. Technically, a traveler might commit such a tort on a fellow traveler when they bump together on a crowded train. But since the conduct is a result of people living in crowded societies and engaging in activity that is socially and commercially productive, namely train travel, the law will not (without some extra element such as intention) give redress. The activity is purely a by-product of modern industrial life.
Leaving those broad considerations to one side, more specific policies can be identified. In the first place, there is the function of tort to compensate the plaintiff. It is not to punish the defendant. This means that the focus is on the loss suffered by the plaintiff. If there is no loss, there is no tort. So even if, for instance, the defendant was guilty of very reckless driving but luckily the plaintiff was not injured, the courts, in administering tort law, will not punish the defendant. This is the function of the criminal law. In fact, the plaintiff will not succeed at all, or if he or she does, the damages will be minimal.
In looking to compensate the plaintiff, the law traditionally has focused on individual responsibility based on fault. This notion arose in part out of religious influences on the law which looked at moral culpability of the parties. This approach also satisfied the aim of deterring anti-social behaviour by the defendant and serve as a warning to others. This was a by-product of the fundamental object of compensating the plaintiff. While fault is still the fundamental principle of our tort law it is gradually being regarded as out-model. Sometimes the degree of loss suffered is out of all proportion with the degree of fault. Also it is not always easy to pinpoint actionable fault. In many cases, the accident causing the harm arises out of our busy industrialized society and perhaps it is necessary for society to accept some part of the burden of loss. This concept is known as loss spreading. Here, the law, rather than attaching liability to the wrongdoer, focuses on the person who is best able to spread the loss. The system is already at work through insurance.The best example of loss spreading is the system of worker’s compensation. If a person is injured at work, irrespective of whose fault it is, the worker is compensated by the employer. However, the employer will not pay the damages out of his/her own pocket; they carry compulsory insurance. The insurance company pays but is able to recoup through higher premiums which are borne by all its clients. Those clients meet the higher premiums by charging higher prices for their goods or services. So eventually the public pays.
In some areas of tort law there is a hybrid system that combines both fault and loss spreading. The best example is compulsory third party personal injury insurance. Here a plaintiff injured in a motor vehicle accident has to show that the defendant was at fault but (ordinarily) the defendant does not have to pay for the damages. They are met from an insurance fund to which all vehicle owners contribute.
As a rule, courts do not overly take into account the policy of loss spreading or insurance when reaching their decisions and so these factors are more likely to influence legislatures when reforming a particular area of law.
SELF ASSESSMENT EXERCISE
- Define the term “tort”
- Give five examples of types of tort Elements, Tests, Factors, Rules
Causes of Action A cause of action is a specific law or principle of law that enables the citizen to obtain some redress from the courts. The law regulates only through specific causes of action such as negligence or breach of contract.
The term ‘cause of action’ is most commonly used where the common law is operating. However the same approach can apply to a civil claim based on a statute. Again, you will find it necessary to break the statute up in to its constituent parts (elements) all of which must be satisfied before the claim is met.
Test/Indicative Factors As we proceed with our lessons, frequent reference will be made to elements but another term that will arise will be test. Quite frequently, the application of an element is not clear on its face and it may be necessary to resort to further law to explain the content of the element or to provide some sort of measuring stick. Here, two possibilities present themselves:
- The courts may have laid down a test for the application of the particular element. A test might also be used to describe the prerequisite or limits of the elements and forms part of the element. A good example of this is found in relation to negligence. As you will see, one of the elements of negligence is the need to establish that the defendant owed to the plaintiff a duty of care. But how do we measure the duty of care? The answer is by the application of the test of ‘reasonable foreseability’, that is, was the injury or damage resulting from the defendant’s act reasonably foresee-able? [Actually as you will see later on this module there are two tests for the duty of care but only one is mentioned here as an example of the word “test”. We look in detail at negligence presently and more information if given on the law. For the moment, we are only concerned with the mechanics of the operation of the law.
- The other possibility is that the courts do not lay down a test but leave it to each case to determine if the element in question is met in a particular case. The courts may provide examples that assist in the application of the element but they are no more than examples. These examples are called indicative factors and unlike elements, they do not have to be satisfied. A good example of indicative factors is to be found in the first element of Amadios case. You will recall that before a person could establish unconscionable conduct they had to show that they were under a ‘special disability’. The court did not lay down a test for this element but rather give some examples of what might amount to a ‘special disability’ such as old age, sickness, illiteracy or lack of education. The list is neither exhaustive nor does it mean that even if one of these examples is met then the element is satisfied. It is still a matter for the court to decide in the particular case whether the element is met.
Quite often, later cases provide more and more illustrations of the application of the element which paints a more detailed picture of the indicative factors (this is one role of precedent) but even so the factors are still just examples. Where the element is quite clear on its face then it may be a simple task for the court to apply the element to the facts of the case as where the defendant knows of the plaintiff’s special disability. Here all the court is concerned with is whether as a matter of fact the defendant has this knowledge. No legal tests or indicative factors are required. You will be told when tests or indicative factors are applicable but one pointer is the presence of a general or vague word (or concept) that could be open to interpretation such as ‘duty of care’ or ‘special disability.
The other word that lawyers often use when describing the law on a subject is rule. This is a general word, which usually refers to requirements that either are of universal application or have to be met in particular circumstances. Rules are not like elements that have to be met as part of a cause of action. They are developed from precedent cases that have had to deal with particular fact situations that come before the courts and for this reason they usually apply in specific circumstances. Rules appear frequently in contract law and as you study that area rules will become more familiar to you.
Do we have a law of tort or a law of torts or mere “shreds and patches”? What is your view and the basis! What is of more relevance is the meat in the pie – the features or elements of torts; namely fault, damage, causation, policy.
In this unit, you have studied Tort Law as a broad outline. Try to remember the features that are reasurable, common to torts., Tort claims call for adjustment of competing interests. In this regard, the deciding factor may range from the function of tort to compensate the plaintiff, and individual responsibility based on fault. The concept of loss spreading impacts on decisions but the court do not admit.
We also talked about causes of autum and attempted to break them into elements. To he successful, all elements must meet some elements and contain a test which is the legal measuring stick for the element. Some elements rather than having a legal test have indicative factors which are examples for guidance only. We noted that Rules are legal requirements that have to be met but they are more specific than elements, which are concerned with courses of action
Distinguish Law of Tort from Law of Contract and the criminal Support your answer with illustration and decided cases