The Law of Tort
What is Tort.
The word Tort comes from the Latin “tortus” meaning twisted or crooked. In English law, it refers to a wrongful act or an omission for which compensation/damages can be obtained in the civil court against the person that who committed the act or omitted to do something whereby the “victim” suffered loss or injury.
The Law of tort is concerned primarily with providing compensation/damages for personal injury and property caused by result of negligence, at least, that is the most common application. However other interests such as damage to reputation (defamation, unlawful imprisonment, assault, trespass, nuisance, intimidation, conspiracy, passing off, all come under the Tort category.
Loss or Damage
However most torts are actionable only if they have caused loss or damage although a tort whose function is to protect rights rather than compensate for damage are actionable without proof of damage. The most common instance of this is trespass where, the court may grant an injunction to prevent a trespass and preserve the rights of the landowner without actually awarding any compensation to the landowner unless the landowner has suffered any damage.
Typically, trespass would only be financially compensated if damage to plants or crops or buildings had happened as a result of the trespass.
The person who commits the tort is called the Tortfeasor although someone who is not actually committed the tort may still be liable for the actions of another under the doctrine of vicarious liability. This is the case where an employer is liable vicariously for the actions of their employees.
The remedies available against tortfeasors would be compensation/damages in respect of any physical injury or damage including damage to reputation or an injunction if there has been no damage or injury and the need is simply to protect someone’s right.
Relationship between Tort and Contract Law
Sometimes, there is a relationship between tort and contract. As an example, if a person gets in a taxi there is a contract for the taxi driver to take them to their destination and to deliver them in good order and has a duty of care. Even if that’s not in any kind of documentation (unlikely for a taxi ride!) it is implied and also expressed within the provisions of the Supply of Goods and Services Act that the task would be carried out with reasonable care and skill. If the taxi has an accident, there is a breach of contract.
However there is a common law duty of care owed by the taxi driver to the passengers (and others) and if there is an accident, then the taxi driver (if the accident is his fault) commits the tort of negligence.
In cases like that, the passenger can either sue in contract or tort.
This latter point is quite interesting because under the Limitation Act 1986, the limitation period for personal injury claims resulting from negligence is 3 years. However under the same statutory provision, the limitation period under a contract is 6 years. This means that it is potentially possible for a claimant to bring a claim against a negligent party but to do so, not in negligence, but in contract.
Relationship between Tort and Criminal Law
Many torts are also crimes. For example, dangerous driving is a crime which may arise to an action in tort if the dangerous driving caused injury or damage to another person or another person’s property. Similarly, assault is both a crime and tort and may also lead to a claim for compensation.
A criminal matter is punishable either with a fine, community service or imprisonment whereas a civil tort is not punishable at all. It’s rather an odd concept because the whole doctrine of English civil law is that it is not punitive and it does not seek to punish a perpetrator. Hence, the tort is dealt with in the civil court by awarding compensation/damages to the victim or an injunction against the perpetrator. The idea of the compensation/damages are not to give the victim some kind of windfall but either put the victim back into the position that they would have been had the tort not occurred or to compensate them in some way (not punish the tortfeasor) for the incident.
Whilst this lack of punishment is the basic concept, of course, any award made against a negligent party will always be some kind of punishment but it must be noted that the intention is to compensate the victim not punish the perpetrator.
Police and the CPS
Although the criminal matter would be pursued with the police and the CPS, and there may be a Criminal Injuries Compensation Authority award in respect of any injury or damage, the victim is also at liberty to bring their own claim against the tortfeasor with a view to getting compensation/damages.
With regard to the criminal proceedings, the decision as to whether the person is guilty or not is decided beyond all reasonable doubt. This means that there should be no doubt in the mind of the court or jury that the offence was committed. The civil claim however is decided on a much lower burden of proof being the balance of probabilities.
That means that it only has to be more likely than not that the incident occurred as a result of negligence than not, for the claim to succeed. Whilst that might seem rather unfair that there is not a higher burden of proof, the court has to make a decision one way or the other and all it needs are some facts to simply tip the balance one way or the other.
Matters of tort are dealt with in the civil court and criminal matters are dealt with in criminal (Magistrates and Crown) courts.
Tort and Strict Liability.
It must usually be shown that the wrongful act was done intentionally or negligently but there are some torts of strict liability. Strict liability is liability for an act or omission or crime that is imposed without the necessity of proving “mens rea” (guilty mind) although there must be an “actus reus” (guilty act). It is the fact of the incident on its own which gives rise to the strict liability of guilt.
For example, probably the most commonly recounted crime of strict liability is the possession of controlled drugs without authority. It doesn’t matter why a person has them, they commit an offence. The other more day-to-day offence is that of speeding. There is no defence to speeding.
It is strict liability. If someone is doing 31 mph in a 30 mph limit, they commit an offence. It doesn’t matter whether they are rushing to take someone to hospital or that the speedometer in the car is defective or any other reason, they commit an offence. They may have some mitigating circumstances but mitigation is not a defence.
Relating Strict Liability to tort and giving an example, breaches of statutory duty in the workplace are not only criminal offences but also torts. It is no defence for the defendant to prove that they to reasonable care to prevent damage albeit that it happened. The very occurrence of the damage gives rise to the liability.
The most common torts are:
and some of the more obscure torts which lawyers may never come across in a lifetime of practice
- False Imprisonment
- Lack of consent
- Self defence
- Intentional infliction of emotional distress
- Invasion of privacy
- Breach of confidence
- Abuse of process
- Malicious prosecution
- Trover (a suit for recovery of compensation/damages against anyone who is wrongly taken personal property)
- Replevin (a remedy to recover goods unlawfully removed by a legal process)
- Detinue (action against wrongful detention of goods)
- Conversion (an action against wrongful interference with goods)
and one which really dates back hundreds of years and is in the same category as the old-fashioned “breach of promise”,
- Alienation of affections.
A rather quaint tort which is brought by a deserted spouse against the third party (such as an adulterer) who the deserted spouse believes is responsible for the breakdown of the marriage and for their departed spouse leaving them! As is been said, many legal practitioners will never come across many of these in a lifetime of practice.
Who can bring an action?
Before anyone can bring an action against a tortfeasor they must be 18 years of age. Below age 18 years of age or if they are not full mental capacity or have a disability or suchlike, then the action must be brought by a third party, on their behalf. Usually, this would be a parent or guardian bring the action as what is known as a Litigation Friend. If it were not possible to do this, would mean that any minors under age 18 would not have a remedy for any wrong which they had suffered.
It is worth noting that whilst the statutory period of limitation under the Limitation Act 1986 is 6 years in contract and 3 years in negligence, time does not start to run until the victim is aged 18 regardless of when the tort occurred. The 6 year period in contract is not relevant in this respect because anyone under aged 18 is not deemed competent to enter into a contract. The overall effect therefore is that if a minor or suffers an injury or loss as a result of a tort, they have until aged 18+3 years, i.e. until aged 21 to bring a claim.
Leaving such matters for so many years is never a good idea and usually the litigation friend would deal with any proceedings and any compensation awarded would be held in trust for the child’s education, maintenance and benefit pending the child reaching the age of majority at 18.
Who can be liable?
This can include employers, employees, doctors, drivers, building occupiers, literally, anyone. Once upon a time, the Crown was immune from prosecution claims in tort or criminal proceedings. However the legal practitioners made the crown liable.
The Monarch remains immune from prosecution and for the purposes of the Act, “the Crown” is basically emanation is of the ground such as the government, the police, local authorities et cetera.
Members of the Royal household are immune from arrest in civil proceedings but are still liable in respect of any criminal proceedings. The Royal family cannot commit murder away from it!
Elements of a Tort
- All the elements of a tort must be present for there to be a claim.
- There must be a duty of care
- the duty must be breached
- someone must suffer loss or damage or injury
- the loss damage or injury must flow from the breach (called causation)
and also, for it to be actionable, the loss or damage flowing from the breach must be reasonably foreseeable. The best example of this is in respect of an actual legal case from many years ago when a cricket ball was knocked right out of the ground and injured someone.
Whilst under normal circumstances there may be negligence not as you would think from the player that hit the ball or the bowler that bowled it, but from the owner of the land, the facts were that a ball had only been knocked outside the ground half a dozen times in 50 years and therefore, the possibility of someone being injured was so remote that it was not reasonably foreseeable and therefore the claim failed.
Whilst that might seem rather unfair on the victim, that is what the court decided.
Duty of Care
There must be a Duty of Care owed by a person to another person. That is the legal obligation in situations where a person can reasonably foresee that their actions may cause damage or harm to the person or property of others. That duty of care is owed to anyone who may be affected or is likely to be affected by the conduct in question.
For example, doctors have a duty of care to patients in exactly the same way that a driver has a duty of care to other drivers and pedestrians. The taxi driver has a duty of care to passengers and those around him including other road users.
Breach of Duty
However, there is no general duty of care to stop someone causing harm or damage or to rescue anyone or prevent any harm to property. Hence, if something is on fire and a person stands around and watches it burn, then no liability attaches to them. There may be a statutory duty such as there would be in respect of firefighters but that is different from liability in tort.
Causation is the relationship between the act and the consequences of it.
A claimant must prove that whatever damage or loss they suffered was as a result of the tortious act. Hence, if someone has a broken leg which they claim is as a result of someone else’s act or omission, they must prove that the broken leg was as a result of the act or omission and that they didn’t, for example, fall over and break it in some other way.
There is a rather simple legal test called the “but for” test which is literally what it says. But for this incident, would the damage have occurred?
Sometimes there may be an intervening act. For example, someone may trip on the pavement and stumble and fall into the road and get run over by a bus. That is an intervening act and the person caused the trip would not be responsible for the injury whereby the person was run over by the bus.
Damage or injury
Except in the case of trespass where someone is seeking to preserve their rights over, for example, land, there must be damage or injury. This may or may not be physical injury broken bones, bruising, cuts et cetera but can be psychological damage or mental injury. However for any psychological damage or mental injury to be actionable, the claimant will have to prove that there is a recognised psychiatric injury such as Post Traumatic Stress Disorder.
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