The rules and theory of the law of tort

An Introduction

Learning Objectives:By the end of this session you should be able to:

1. Describe the meaning of tort and the term ‘tortfeasor’2. Outline the origins of the law of tort3. Identify different torts4. Explain the purpose of tort5. Explain the difference between fault liability and strict liability6. Explain the justification for a tort system (including reasons of

economics, corrective justice and retributive justice)7. Explain criticisms of the tort system.

What is ‘tort’?

• The word ‘tort’ comes from Norman French and means ‘wrong’.

• It is a body of law mostly found in the common law rather than statute law.

• It involves ‘civil wrongs’.

• Some examples of torts include trespass, nuisance and negligence.

Tortfeasor

A person who commits a tort is referred to as a ‘tortfeasor’.

Is there anything wrong with this?

Trespassers will be prosecuted

Answer

• ‘Prosecution’ is criminal law

• Trespass is civil law*.

[*Please note that there is a crime of ‘aggravated trespass’ under the Criminal Justice and Public Order Act 1994 s.69]

Origins of the Law of Tort (1)

• Prior to the Norman invasion, Anglo-Saxon law dominated in much of England.• Anglo-Saxon law usually required the payment of money to the victim for

civil (and criminal) wrongs committed.• Anglo-Saxon legal principles heavily influenced the growing common law

that was developing after the Norman invasion in 1066.• The concept of ‘civil wrongs’ was referred to by various names. However,

beginning at the end of the sixteenth century, the term ‘tort’ began to be increasingly used and started to replace the other terms.

Origins of the Law of Tort (2)

• The English legal system is a common law system. This means that it is heavily influenced by judicial precedent and, unlike Roman Law, it is largely uncodified.• The common law system provided the means by which the law of

tort could develop and grow through the decisions of judges.• This means that some torts are relatively new such as negligence

(originating from Donoghue v Stevenson in 1932) and the Rule in Rylands v Fletcher in 1868.

Origins of the Law of Tort: Wales

• Wales originally had its own legal system. However, the Laws in Wales Acts 1535 and 1542 introduced English civil law to Wales. • This meant that the developing system of tort in England also

applied to Wales.

The Purpose of the Law of Tort

Tort focuses on compensation of individuals in situations where their private individual interests have been infringed.

How might your private interests be infringed?

• When you walk along a payment?

• When you drive your car?

• When you are sleeping at night in bed?

• When you drink a bottle of ginger beer?

• When the quickest way to the local shop is through your front garden?

How might your private interests be infringed?

• When you walk along a payment?A driver using his mobile ‘phone might lose concentration, mount the pavement and hit you

• When you drive your car?Another car drives into the back of your car at the traffic lights

• When you are sleeping at night in bed?A neighbour might play loud music that keeps you awake

• When you drink a bottle of ginger beer?The beer might have a decomposing snail in it which makes you ill.

• When the quickest way to the local shop is through your front garden?our neighbours may take a short cut through your front garden without your permission

Activity: Various TortsUse a textbook, legal dictionary or an electronic device to find out the meaning of the following torts:

• Private nuisance• Defamation • False imprisonment• Trespass to land• Trespass to the person

Activity: Various TortsUse a textbook, legal dictionary or an electronic device to find out the meaning of the following torts:

• Private nuisance: an interference with a person's enjoyment and use of his/her land without lawful justification.

• Defamation: a false statement that ridicules a person in the eyes of right thinking members of society.

• False imprisonment: depriving a person of freedom of movement without lawful justification (this tort is regarded as a type of trespass to the person).

• Trespass to land: entering the land of another without lawful excuse.• Trespass to the person: a direct and intentional act of assault, battery or

false imprisonment.

WJEC Specification (Wales)

You will be studying two types of tort:

• Liability in negligence for injury to people and damage to property

• Occupiers Liability

Fault Liability v Strict Liability in Tort

• Fault liability refers to situations where a person will only be held liable if they were at fault. In most torts, fault must be shown for the defendant to be held liable.

• Strict liability refers to a situation where a person will be held liable even if they were not at fault.

What fault has occurred?

I was riding my bike when this very fast car came speeding around the corner, mounted the pavement and hit me. My bike was destroyed, I suffered a broken leg and have been off work for a couple of weeks now. I have heard the driver is being prosecuted for dangerous driving.But what I really want to know, is there any way I can claim compensation from him to pay for the for the pain I am suffering, the damage to my bike and my loss of earnings?

Answer

• Under the tort of negligence, the driver of the car owes other road uses a duty of care. These other road users are his/her neighbours in law.

• He/she has breached this duty of care (and is at fault).

• I have suffered damage as a result.

What fault has occurred?

I was riding my bike when this very fast car came speeding around the corner, mounted the pavement and hit me. My bike was destroyed, I suffered a broken leg and have been off work for a couple of weeks now. I have heard the driver is being prosecuted for dangerous driving. But what I really want to know, is there any way I can claim compensation from him to pay for the for the pain I am suffering, the damage to my bike and my loss of earnings?

My mother saw the accident and she got very upset. She has since been suffering from severe depression from what she saw. Can my mother claim compensation from the driver?

Answer

• Under the tort of negligence, the driver of the car owes other road uses a duty of care. These other road users are his/her neighbours in law. He/she has breached this duty of care.

• The driver also owes my mother a duty of care as it is reasonably foreseeable that his/her negligent acts or omissions (i.e. faults) could cause my mother harm if she was to witness the accident

• My mother suffered a psychical injury as a result of his/her negligent act.

What fault has occurred?

I have just bought a small farm. I have built a large reservoir on the farm where I can go fishing. I had the reservoir built by a reputable company. Last night there was a storm. The reservoir burst its sides and flooded my next-door neighbour’s property. Am I liable for the damage caused?

Answer• I might be held liable for the damage caused by the escape of water from

the reservoir on my land. • In Rylands v Fletcher the owner of a property can be held liable for the

escape of a non-naturally held thing that causes damage. In this case, the reservoir is non-naturally occurring, water has escaped from it and damage has been caused.

• It might be argued that I have not been at fault as I had the reservoir built by a reputable company. However, the Rule in Rylands v Fletcher is a tort largely based on strict liability rather than fault.

[Please note that the decision of the House of Lords in Cambridge Water Co v Eastern Counties Leather PLC [1994] has introduced an element of fault to the Rule in Rylands v Fletcher as there must be foreseeability of damage.]

Corrective Justice and Retributive Justice

Discussion:

What is the difference between corrective justice and retributive justice?

Corrective Justice and Retributive Justice

Corrective justice is sometimes known as restorative justice. It means putting a person back in the position he/she was in. This might be through the payment of damages or even the issuing of an apology.

Retributive justice is based on punishment. It aims to prevent wrongdoing.

The Justification of Tort

Discussion: Can you think of any advantages of the tort system?

Hint: consider corrective justice, retributive justice and the economic cost to the taxpayer of the victim of an accident who is unable to work

again.

The Justification of Tort (1)Some of the justifications for the existence of tort include:

• It provides the means for a person to obtain compensation for the damage caused by the wrong committed by another person. The person can be restored to the position they were in before the tort occurred (this is sometimes known as corrective or restorative justice).

• It creates an incentive for persons to avoid committing acts or omissions that might hurt others. It might make people and companies be more careful with their acts or omissions and therefore make society more safe.

• People who suffer injuries and are unable to claim compensation may have to go on benefits which will ultimately cost the taxpayer money.

The Justification of Tort (2)

Some of the justifications for the existence of tort include:

• It is supported by the concept of the Rule of Law. For instance, a claimant unlawfully detained by the police can bring an action for unlawful imprisonment.

• Although the law of tort is largely based on corrective justice, in some circumstances a court can award damages to punish the tortfeasor. For example, exemplary damages can be awarded for the oppressive, arbitrary or unconstitutional torts committed by the servants of the government. This is a type of retributive justice.

The Justification of TortDiscussion: Can you think of any disadvantages of the tort

system?

Criticisms of TortThere are many criticisms of the system of tort:

• It is creating a compensation culture. • Claims of negligence brought against the NHS cost the taxpayer much

money.• Many potential claimants may not have the financial means to being an

action in tort. Legal aid is rarely available for tort.• A tort such as Rylands v Fletcher is a largely strict liability tort and has

been criticised for not requiring fault on the part of the tortfeasor.• The system may be abused by people making fraudulent claims.

Criticisms of Tort

Activity:

Use YouTube to see if you can find any films of persons caught by a ‘dash cam’ or a supermarket security camera trying to fake an accident and attempt an insurance scam.