From Lawiki - The law notes repository
Jump to navigation Jump to search
Lawiki for and by law students - find us on Facebook if you want to help us edit this Law Wiki.

Not professional advice - LAWIKI cannot guarantee the validity of any information

The term in common law systems for a civilly actionable harm or wrong, and for the branch of law dealing with liability for such wrongs. It is a fundamental principal of law that individuals should conduct themselves in such a way as to minimize the harm or injury done to others. This principle is reflected in the large body of 'tort law' present in English law. The term 'tort' is derived from the latin word 'tortus', meaning 'a wrong'. The law of torts is concerned chiefly with providing a means for victims of harmful or wrongful acts, whether deliberate or through negligence, to claim compensation from any tortfeasor. On the whole, torts are distinct from criminal offences and are handled separately by the courts, although specific actions may sometimes be assigned to both categories.

Analytically, the law of torts is a branch of the law of obligations, where the legal requirement to refrain from harming others and, if harm is done, to rectify it or compensate for it, are imposed not by agreement, but independently of agreement by force of law. Socially, the function of tort is to shift loss sustained by one to the person who is deemed to have caused it or been responsible for its happening, and in some measure to spread the loss over an enterprise or even the entire community. Liability in general depends upon the defendant having, by act or omission, acted in breach of a legal duty incumbent on him and infringed a recognized legal right vested in the plaintiff, thereby causing the plaintiff harm of a foreseeable kind. Not every harm is actionable; there is, for instance, no liability for an inevitable accident of an 'act of God'. The pecuniary consequences of liability may be shifted by liability insurance.

The standard of care that determines when liability is to be assessed is, generally speaking, failure to take the care and precautions that were reasonable in the circumstances. The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the 'reasonable person'. This was famously defined in Vaughn v Menlove (1837) as an individual who 'proceed[ed] with such reasonable caution as a prudent man would have exercised under such circumstances'. The 'reasonable person' was somewhat more colourfully described by Greer LJ in Hall v Brooklands Auto-Racing Club (1933) as 'the man on the Clapham omnibus'. Lord Steyn updated this description as 'commuters on the London Underground' in McFarlane v Tayside Health Board (1999). The point, of course, is that the standard of care is an objective standard, based on the perceptions and sensibilities of the average person. Such an individual is by no means thought to be flawless; rather, he is taken as 'ordinarily' careful and prudent. Hence, while the standard of care may not require perfection, it does insist that individuals conduct themselves in a duly cautious manner. Nevertheless, it does not assume that people are capable of anticipating every conceivable risk associated with their behaviour.

The standard of 'the man on the Clapham omnibus' is not applied in all cases, particularly when doing so would lead to an obvious injustice. After all, where the standard is too low, a defendant could be exonerated for an obvious wrongdoing. On the other hand, where the standard is too high, an especially onerous duty could be unfairly imposed on the defendant. Typical cases where a question of adjustment can arise are those dealing with specialist defendants, inexperienced defendants and child defendants.

In the case of 'specialist defendants', the standard of care is frequently made more stringent than it would be for the average person. In certain industries and professions, the standard of care is determined by the standard that would be exercised by the 'reasonably prudent manufacturer' of a product, or the 'reasonably prudent professional' in that line of work. Such a test (known as the 'Bolam Test') is commonly used to determine whether, for example, a doctor is liable for medical malpractice. In these circumstances the test of the ordinary average person is entirely inappropriate for defendants who profess, or hold themselves out as professing, a highly-trained or highly-specialized skill or expertise. The conduct expected from the skilled professional is simply not the same as that could be expected of an ordinary man in the same circumstances. On the other hand, the novice in any highly-trained area of skill or expertise is required to demonstrate the same standard of care as the reasonably prudent professional with the same skill must show. The law makes no allowance for a defendant's lack of experience. In Nettleship v Weston (1971), for example, a driving instructor was injured due to the mistake of his student. The student argued that the instructor was aware of her lack of experience, but the Court of Appeal refused to accommodate this fact in their decision on the standard of care expected of her. At the same time, the teacher's award of damages was reduced due to his contributory negligence. Finally, the courts are prepared to lower the standard of care expected of children, on account of their age. Generally speaking, a child defendant is expected to meet the standard of a reasonable child of similar age, experience, and intelligence under like circumstances. Note, though, that there are exceptions for children engaged in 'adult activity', although just what this constitutes may vary from one jurisdiction to the next. In Gough v Thorne (1966), for example, a thirteen year-old girl was not considered contributorily negligent when she crossed the road without looking, after having been beckoned by a lorry driver, and was hit by a car driving at excessive speed.

Whether or not the defendant in a given case has failed to conduct himself in accordance with the standard of 'a reasonable person' is a question of fact, and it falls to the claimant to prove this fact. However, where it is unlikely that a certain event could have taken place without the defendant's negligence (e.g. where a surgeon has left a scalpel in the patient's body), and it can therefore be said that 'the thing speaks for itself', the burden is on the defendant to show that the fact that caused the damage cannot be attributed to his negligence. Here, the claimant may claim 'res ipsa loquitur' as a way of shifting the evidential burden to the defendant. (To do so requires that the following criteria be satisfied: (i) the incident occurred in an inexplicable fashion; (ii) the incident would not have occurred in the ordinary course of events if not for defendant's negligence; (iii) the defendant had control of the object causing injury.)

There are also circumstances in the law of torts where Strict liability can be said to apply. Here, the defendant is deemed liable if it can be showed that he failed to avoid the harmful consequences of his actions, unless he can establish one of a very limited number of available defences. However, in cases of breach of a statutory duty the liability may be absolute. Here, the defendant will be liable if the prohibited harm occurred at all, irrespective of any precautions he may have taken.

Finally, the principle of vicarious liability applies in tort law, and joint tortfeasors are all liable for the entire harm caused, with right of relief inter se (i.e. among themselves). If the plaintiff was himself wholly or partly to blame for the damage, damages awarded may be reduced in proportion to the degree in which he was at fault.

Torts may be classified into (i) those involving intention, (ii) those involving negligence, and (iii) the wrongs of Strict liability . They may also be classified into torts affecting (i) the person (e.g. trespass, negligence), (ii) the family (e.g. wrongful death of a relative), (iii) reputation (e.g. libel and slander), (iv) property (e.g. trespass to land or goods, nuisance, conversion), (v) economic rights (e.g. deceit, inducement of breach of contract, injurious falsehood), and (vi) certain miscellaneous torts (e.g. conspiracy, abuse of process). There are certain kinds of conduct, such as infringement of privacy, that are not yet recognizable as actionable torts, although they may soon come to be.

The normal remedy for a tort is an award of pecuniary damages in compensation for the harm done. In personal injury and death cases the computation of damages may involve many complex issues and factors. In some circumstances (e.g. nuisance), an injunction is an appropriate remedy.

See also negligence, tortfeasor.