Rules of Tort Law

Tort law is a branch of civil law that deals with situations where a person’s behaviour has unfairly caused someone else to suffer loss or harm. Unlike criminal law, which focuses on punishing offenders, tort law is primarily concerned with providing relief to the injured party and deterring others from committing similar harms. The scope of tort law covers a wide variety of wrongful acts, including negligence, nuisance, trespass, and defamation.

Rules of Tort Law: Key Principles and Structure

• Duty of Care: The defendant must owe a legal duty to the claimant.
• Breach of Duty: The defendant must have breached that duty.
• Causation: The breach must have caused harm to the claimant (both factual and legal causation).
• Damage: Actual harm or loss must have occurred.

Tort law is structured around precedent (previous legal decisions) and is developed through case law, though some areas are governed by statute.

Theory of Tort Law: Overview and Main Theories

• Corrective Justice: Focuses on correcting a wrong by compensating the victim.
• Distributive Justice: Concerned with the fair allocation of resources and losses in society.
• Deterrence Theory: Aims to discourage wrongful conduct through the threat of liability.
• Economic Analysis: Suggests that tort law should promote efficiency by minimising the social costs of accidents and injuries.

Aims of Tort Law: Protection, Compensation, Deterrence

• Protection: Safeguards individuals’ rights and interests (e.g., personal safety, property, reputation).
• Compensation: Ensures that those who suffer harm are compensated for their losses.
• Deterrence: Discourages others from engaging in similar harmful behaviour.
• Justice: Seeks to provide a fair outcome for both parties involved.

Tortious Liability: Meaning and Requirements

Tortious liability arises when a person commits a civil wrong (tort) that results in harm to another. To establish liability, the claimant must prove:

1. The existence of a legal duty owed by the defendant to the claimant.
2. A breach of that duty.
3. That the breach caused foreseeable harm or loss.

Claimant and Defendant: Roles and Identification

• Claimant: The person bringing the tort claim (formerly known as the plaintiff).
• Defendant: The person or entity alleged to have committed the tortious act.

Both natural persons (individuals) and legal persons (companies, organisations) can be claimants or defendants in tort cases.

Proof of Fault: Requirement and Nature

In most tort cases, the claimant must prove that the defendant was at fault, meaning they acted negligently or wrongfully. The standard of proof is "on the balance of probabilities" (more likely than not). Some torts, like strict liability torts, do not require proof of fault, only that harm occurred as a result of the defendant’s actions (e.g., in cases involving dangerous animals or defective products).

Defences in Tort: Common Defences Overview

• Contributory Negligence: Where the claimant’s own negligence contributed to the harm suffered. Damages may be reduced accordingly.
• Consent (Volenti non fit injuria): If the claimant consented to the risk of harm, the defendant may not be liable.
• Inevitable Accident: Where the harm could not have been avoided, even with reasonable care.
• Statutory Authority: Some acts are authorised by law and therefore not actionable in tort.

Aim of Tortious Action: Purpose and Outcomes

The main aim of a tortious action is to restore the claimant, as far as possible, to the position they were in before the tort occurred. This is usually achieved through the payment of damages (compensation) or, in some cases, through injunctions (court orders to do or refrain from doing something).

Parties to Civil Actions: Natural and Legal Persons

• Natural Persons: Individuals who may be claimants or defendants.
• Legal Persons: Entities such as companies, partnerships, or public bodies. These can also bring or defend tort actions.

Both natural and legal persons have rights and responsibilities under tort law.

Protected Interests: What Tort Law Safeguards

• Personal safety and bodily integrity (e.g., assault, battery, negligence).
• Property (e.g., trespass to land, nuisance).
• Reputation (e.g., defamation).
• Economic interests (e.g., passing off, interference with contractual relations).
• Privacy and enjoyment of property.

Compensation Culture: Issues and Debates

The term "compensation culture" refers to the perception that society is becoming increasingly litigious, with individuals more likely to seek compensation for minor injuries or grievances. Critics argue this leads to frivolous claims, increased insurance premiums, and a risk-averse society. Supporters claim it ensures accountability and access to justice for genuine victims. The debate continues as to whether there is evidence of a true compensation culture or if it is exaggerated by media and political discourse.

Tort vs Contract and Crime: Key Differences

Summary and Exam Tips

• Understand the core principles: duty, breach, causation, and damage.
• Be able to explain the aims and theories of tort law.
• Know the requirements for liability and common defences.
• Be clear on the differences between tort, contract, and crime.
• Use case examples to support your answers in exams.
• Stay updated on debates such as compensation culture.
• Practise applying the law to problem questions and scenarios.