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2 Law of torts

2 Law of torts


The word “tort” is French for “wrong”. It is different from crime, because it is a duty owed to another specific person, rather than being a duty owed to society as a whole.

“Of course, all crimes are also ‘wrong’ ;) ,” Mandy noted.

“That’s right, but that’s only in the day-to-day definition of the word,” Jamie commented, “in law, criminal acts are not classified as torts.”

“So the difference between a tort and crime, for example, is if you put out your foot, tripped me over, and caused me the need to go to the hospital :(  – you’ve caused me a tort, but not a crime, because you haven’t hurt society as a whole?” Mandy asked.

“Yep,” Jamie replied.

The person who commits a tortious act is called the tortfeasor, who will be the defendant in court.

“In our example, you would be the tortfeasor?” Mandy asked.

“Yep,” Jamie replied.

Tortious acts involve not only physical injury, but also emotional, economic, reputational, violation of privacy, property or constitutional right.

“This is why tort is so broad,” Mandy commented.

“And many cases come to court as a result of tort,” Jamie replied.

The person who suffers tortious injury, under tort, is entitled to receive “damages” (monetary compensation) :) .

Categories of tort

Tortious acts are defined either by common law (i.e. judge-made law) or by statute (i.e. parliament-made law).

Negligence is the classical tort, which involves breaking a duty of care owed by one person to another.

The case law lies on the story of Donoghue v Stevenson [1932] AC 562, which is where Mrs. Donoghue was given a drink in a bar, and whilst having a sip, noticed that there was a snail at the bottom. Neither the shopkeeper nor the friend who bought it for her were aware of the snail’s presence, so Mrs. Donoghue sued the manufacturer (Mr. Stevenson) for damages.

“Reminds me of The Matrix,” Mandy said.

“Why is that?” Jamie asked.

“Mr. Stevenson,” Mandy laughed, “hahahaha.”

“Oh,” Jamie replied, “that’s Mr. Anderson in The Matrix LOL! ;)

In a 3:2 ratio decision, the majority of the House of Lords agreed Mrs. Donoghue had a valid claim. Although there was agreement that there was a valid claim, there was diagreement as to why the claim should exist. Lord MacMilan argued it should be a product liability case. Lord Atkin argued for a unifying principle of owing a duty of reasonable care to neighbors, quoting the Bible in support of this argument, specifically “thou shalt love thy neighbor”. Atkin’s desire for a new body of “reasonable care” law was eventuated, as history shows.

To establish there is negligence, the plaintiff has the “burder of proof” (meaning they need to prove) the following elements of negligence:

  1. The defendant owed the plaintiff a duty of care: This means there is a relationship between the defendant and the plaintiff, such that the defendant has an obligation to avoid causing injury to the plaintiff. This special relationship can be established by either a predefined “special relationship”, or if outside, according to principles developed in case law.
  2. There was a breach of that duty
  3. The plaintiff suffered damage as a result of that breach, by way of causation
  4. The damage was not too remote

Statutory torts are torts imposed as a result of legislation, and not by classical court-made “common” law. One such example is Product Liability law, where businesses who make defective products that harm people must pay for damages resulting.

Nuisance relates to bothersome activities or conduct, that unreasonably interferes with another’s rights, of private landowners (private nuisance) or the rights of the public (public nuisance). Environmental law has classically fallen under nuisance, but become statutory torts as they are codified (i.e. made statute).

Defamation is tarnishing the reputation of another person, which can either be slander and libel (some jurisdictions have eradicated the distinction between the 2). Whereas slander is spoken defamation, libel is printed/broadcasted defamation. Defamation doesn’t hinder the voicing of opinions, but does to some degree curb free speech provided by the First Amendment to the Constitution of the United States, which is analogous to Article 10 of the European Convention of Human Rights.

Intentional torts, which are acts which reasonably foresee the cause of harm to another. These involve torts against a person (assault, battery, false imprisonment, intentional infliction of emotional distress, fraud), and property torts (trespass to land, trespass to chattels [personal property] and conversion [using something like you own it when you don’t]). Clearly, these can be criminal too, as involvement in these activities can harm society at large if exacerbated.

Economic torts, which interfere with trade or business. This includes misrepresentation and anti-trust law as a tort. Note however, that much of these classical economic torts are now covered by statute.

Vicarious liability is where, even though you weren’t the one who committed the tort, because of a special relationship (such as parent-child or employer-employee), you can be sued because of that special relationship. For example, if your child stole a product, you would pay as a parent instead of your child; or if your employee didn’t wipe the floors and someone slipped, you would pay as an employer instead of your employee.

Defenses to tort

Consent, or “volenti non fit injuria” (Latin for “to a willing person, no injury is done”).

“For example, if you agree with me we’ll play hot hands (a hand-slap game), and I slap you Mandy,” Jamie started.

“I can’t sue you for slapping me :( ,” Mandy finished.

“Uhhuh,” Jamie replied.

Consent in this case is implicit, because implicitly in playing the game, you are consenting to be slapped. Or it can be explicitly, where I can say “Mandy, do you allow me to slap you?” and you reply “Yes Jamie, please slap me.”

Contributory negligence, which is generally only a partial defense, which states that the person who has suffered a loss, also contributed to the loss. For example, if you were doing the right thing, but another person swerved across the road and hit you, but you didn’t have your seatbelt on, therefore causing yourself even more damage, this would be an example of contributory negligence. The other person is negligence because they did the wrong thing to cause you damage. But you are partly negligible, because you didn’t have on your seatbelt.

Illegality, which is based on the maxim “ex turpi causa non oritur actio”, Latin for “no right of action arises from a despicable cause”. For example, if a burglar comes into your house to steal property, and slips on the floor because you left the floor wet, they cannot seek negligence, because they were doing something that was illegal.

Remedies in tort

The usual remedy in tort is “damages” (i.e. compensation), but the court can also grant specific performance (i.e. force the defendant to carry out specific legal obligations, for example in nuisance matters).