The nature of tort liability

by Professor Sam Blay

This is an extract from Lawbook Company's Nutshell: Torts  by Sam Blay (Sydney: LBC, 1999, 4th ed). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject. Meaning of tort The word 'tort' is derived from the Latin word 'tortus' meaning wrong or crooked. A 'tort' in law means a civil wrong. Tort law is thus primarily concerned with compensation for damages for civil wrongs suffered as a result of another's acts or omissions. The civil wrong arises as a result of breach of a duty imposed by law. Thus there are, for instance, duties not to assault another person, not to trespass on another's land, not to take another's goods, and to take care not to injure one's neighbour. Some duties are laid down by legislation; others are found in the common law. The emphasis on a tort as a civil wrong distinguishes it from a crime. Crime and tort Like a tort, a crime is a breach of duty imposed by law. However, unlike a tort, a crime is considered a 'community' wrong. A crime therefore does not generally entitle the victim to an individual right of compensation as such. It rather involves the imposition of punishment by the community against the wrongdoer. Criminal law is therefore concerned primarily with punishing a wrongdoer for wrongful acts. On the other hand, the law of torts is concerned largely with compensating the person injured or damaged by a wrongful act or omission. Because both crimes and torts arise from breaches of duties imposed by law, it is possible for a particular breach to be both a tort and a crime. However not every tort is necessarily a crime. Since a crime is considered a wrong against the community, criminal proceedings are, in theory, a contest between the state (ie the community) and the wrongdoer or defendant in which the injured person or victim (as complainant, if that person is still alive) merely becomes a witness for the state. On the other hand, since a tort is a 'private wrong', in tort proceedings the injured person or victim, as plaintiff in their private capacity, sues the wrongdoer or tortfeasor, as defendant, for compensation. In spite of the differences between tort law and criminal law, it is important to note that there are some similarities between the two areas of law. For instance, even though tort law is primarily concerned with compensation, in some circumstances it may permit the imposition of punitive damages against a wrongdoer. Similarly, under the criminal injuries compensation statutes in Australia, it is possible for a victim of crime to be awarded some limited compensation. Contract and tort Like the law of torts, contract law is concerned with civil obligations. However, unlike tort law, the law of contract is largely concerned with the enforcement of duties that one person has by agreement, bound himself or herself to perform for the benefit of another. Even though the law of torts is also concerned with breaches of duties, those duties are not established by any agreement between persons but rather by the law itself. In some cases, a breach of contract may also constitute a tort. However not every breach of a contractual obligation is also a tort. Compensation Compensation is a monetary award made to a person who has suffered a wrong or injury. It usually takes one of two forms:
  • <(a) an award of damages; or
  • (b) the making of a court order designed to compensate the injured party where damages will not adequately compensate him or her.
"Damages" in this sense simply means money or dollars. A court order designed to compensate the injured party is an order that either compels a wrongdoer to do something (other than pay damages) or restrains a wrongdoer from doing something. If the wrongdoer has taken something from the injured party (such as an irreplaceable family heirloom) the injured party would hardly be compensated adequately by being awarded monetary damages. The court, in such a case, might order the wrongdoer to return the thing taken. If a wrongdoer repeatedly does a wrong act, such as releasing foul smelling exhaust fumes from premises so as to pollute the air in the neighbourhood, a court might restrain the wrongdoer from continuing to do so (ie grant an injunction). An injunction is merely a court order either restraining someone from doing an act or (less frequently) compelling someone to do an act. The objective of compensation is not to enrich the injured party; it is to as far as practicable, return the injured person to the position in which he or she was in before the injury. Compensation granted to an injured person is normally also referred to as damages (ie as against the wrong doer) Damages may be real, nominal or punitive. Actual damage is an award that reflects the actual loss sustained by the injured person. Where an injured party does not suffer any loss from the conduct of the wrong doer, a court may award the injured party only nominal damage in recognition of his or her breach of right. By its nature, nominal damage is usually small or modest. Punitive or exemplary damages are awarded in circumstances where the defendant's conduct is so gross or outrageous that it calls for a degree of punishment. The object of punitive damages is to punish and deter. Thus as a rule where the defendant has already been punished under criminal law, a court in a civil action would not award exemplary damages. Liability in tort law In tort law, a defendant would be required to pay damages or compensation for the injuries of a plaintiff only if that defendant is found to be responsible for the cause of the plaintiff's injury. Where the defendant is so responsible, he or she is said to be liable. Liability in tort law may be based on fault  or it may be strict.  Fault liability concerns the failure to live up to a standard through an act or omission. There are two main types of fault liability:
  • (a) liability may be due to an intentional  act ( for example, where a defendant intentionally causes an injury to the plaintiff by hitting him or her); and
  • (b) liability may also be due to a negligent  act (such as where the defendant negligently causes an injury to the plaintiff).
In general, there is no liability without fault. Thus even where a person causes an injury to another, that person is not liable for a tort unless fault (ie intention to cause the injury or negligent conduct) can be proven. Where the injury is caused neither intentionally nor negligently, it may be described as a 'pure accident', and is not actionable. On the other hand, there is a small number of torts which require no fault for liability. These are described as strict liability torts. In such torts, one can be held liable once it is proved that he or she caused the injury irrespective of whether their conduct was intentional or negligent or not. The element of intent The element of intent is crucial in torts and must be understood properly as a foundation for a significant part of the subject. One can speak of intent or the 'intentional act' as the basis of fault liability in four principal instances:
  • (a) the deliberate or wilful conduct of the defendant (for example where the defendant wilfully or deliberately hits the plaintiff in the face);
  • (b) constructive intent (in cases where the consequences of the defendant's conduct are substantially certain or foreseeable as for example where the defendant throws a brick into a crowded room and hits the plaintiff);
  • (c) where the defendant's conduct is reckless (for example, where the defendant kicks or throws arms around without consideration for the safety of the plaintiff who is near, and subsequently causes injury to the plaintiff); or
  • (d) transferred intent where the defendant intends to hit B but misses and hits P instead the defendant would be taken as having intended to hit P.
The element negligence There are two senses in which the law of torts deals with negligence. In its 'ordinary' meaning, negligence simply refers to a careless conduct of the defendant as opposed to a wilful conduct. However in tort law, the term negligence is used more commonly in its technical sense to mean the breach of a duty by the defendant consisting of his or her failure to take reasonable care to avoid a reasonably foreseeable harm to another person. A significant section of the law of torts is based on this notion of negligence. Causes of action Before a person can sue another in tort, he or she usually has to fit the facts of the case into the framework of a recognised cause of action. There are two principal forms of actions in torts These are actions in Trespass and actions in negligence. In addition to these two there is a range of related torts which are dealt with later in this text. Interests protected in tort law Like other branches of law, the law of torts protects specific interests these include:
  • (a) personal security (through the torts of trespass and negligence);
  • (b) personal reputation (through the tort of defamation);
  • (c) property rights (through trespass and conversion); and
  • (d) economic and financial interest (through trespass and conversion).
Professor Sam Blay University of Technology (Sydney)


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