Tort and Tort Law
Definition of Tort
The word "tort" derives from the Latin tortum, meaning "wrong". In English law, a tort is a civil wrong that involves either the infringement of a legal right or the breach of a legal duty. Where a tort has been committed, the injured party is entitled to bring a claim in the civil courts, typically seeking financial compensation or an equitable remedy. Tort law governs a wide range of wrongs — from negligence and defamation to nuisance and trespass — and its rules are determined largely by judge-made common law rather than statute.
Tortfeasor and Tortious Liability
A person who commits a tort is called a tortfeasor, and his liability is described as tortious. It is important to note the correct adjective: "tortious", not "tortuous" (which means winding or excessively complex). A tortfeasor may be an individual, a company, or another legal entity capable of bearing legal personality.
Remedies in Tort
A tort claimant seeks one or more of the following remedies against the tortfeasor (who is the defendant in the civil proceedings):
- Damages: financial compensation designed to put the claimant back into the position he would have been in had the tort not been committed.
- Equitable remedies: for example, an injunction restraining the defendant from continuing the tortious conduct.
This compensatory aim is to be distinguished from the aim of contract damages, which seek to put the claimant back into the position he would have been in had the contract been properly performed.
Functions of Tort Law
Tort law serves four principal functions:
| Function | Explanation |
|---|---|
| Compensation | To restore the claimant financially to the position he was in before the tort occurred. |
| Deterrence | To discourage potential tortfeasors from committing wrongs by imposing the risk of liability. |
| Justice | To provide a mechanism by which wrongs are corrected and legal rights are vindicated through a court process. |
| Vindication of Rights | To affirm that the claimant's legal rights exist and have been violated, even where loss may be minimal. |
Tort Law vs Criminal Law
Tort law and criminal law both respond to wrongful conduct, but they differ fundamentally in their nature, procedure, and purpose.
Who brings the claim: In tort, the action is brought by the injured person (the claimant) seeking compensation. In criminal law, the prosecution is usually brought by the state — in England and Wales, by the Crown Prosecution Service — rather than by the victim personally.
Purpose: A tort claim seeks compensation for the claimant in respect of the defendant's wrongdoing. A criminal prosecution, by contrast, aims to punish the defendant (the offender) on behalf of society.
Court: Tort cases are dealt with by the civil courts (such as the County Court or the High Court). Criminal cases are dealt with by the criminal courts (the Magistrates' Court or the Crown Court).
It is important to note that a single act may simultaneously give rise to both a tort claim and a criminal prosecution. For instance, a deliberate assault may be prosecuted as a criminal offence and also form the basis of a civil claim in the tort of battery.
Tort Law vs Contract Law
Tort law and contract law are both branches of civil law, but they differ in how obligations arise and what remedies are available.
| Issue | Tort Law | Contract Law |
|---|---|---|
| Source of obligation | Obligations are imposed by law (largely through judge-made rules) and owed to the world at large. | Obligations are created by the agreement of the parties and owed only to those who are party to the contract. |
| Determining liability | Liability is determined by largely judge-made rules that dictate whether the defendant's wrongdoing constitutes a recognised tort — not by any consensus between the parties. | The parties' obligations are fixed by the terms they have agreed upon in the contract. |
| Aim of damages | To restore the claimant to the position he was in before the tort was committed. | To put the claimant in the position he would have been in had the contract been properly performed. |
General Principles of Tort Law
Burden of Proof
In a tort claim, the burden of proof lies with the claimant. It is for the claimant to demonstrate, on the balance of probabilities, that the defendant has committed the tort alleged. However, once a claimant establishes the primary elements of the tort, the burden of establishing any defence shifts to the defendant.
Scope of Tort Claims and Recoverable Harm
Not every loss or injury will give rise to a successful tort claim. The claimant must show that the harm suffered is of a type recognised by the existing law of tort. If the loss falls outside an established category, the claimant must persuade the courts to extend the law — and if he fails, no damages will be awarded.
This principle is illustrated by Bradford Corporation v Pickles [1895], in which the House of Lords held that an act committed with a bad motive does not become tortious simply because the defendant intended harm; the act must independently constitute a recognised tort.
Where a claim falls outside the recognised scope of tort law, it is likely to fail. For example, public policy considerations may preclude a negligence claim against the police in certain circumstances, as illustrated by Osman v Ferguson [1993] and Van Colle v Chief Constable of Hertfordshire Police [2008].
Who Can Sue and Be Sued
As a general rule, any individual may sue or be sued in tort. However, certain procedural rules apply:
- Minors: A person under the age of 18 may bring or defend a claim, but must do so through a litigation friend (usually a parent or guardian) who conducts the litigation on their behalf.
- Companies: A limited company has its own legal personality, distinct from its shareholders and directors, and may therefore sue or be sued in its corporate name.
- Death: When a person who has a tort claim dies, that claim (with the exception of defamation claims, which are personal and do not survive death) passes to his personal representatives, who may pursue it on behalf of the deceased's estate.
Limitation Periods
Any tort claim must be commenced within the time limits prescribed by the Limitation Act 1980. The principal limitation periods are as follows:
| Type of Claim | Limitation Period | Starting Point |
|---|---|---|
| General tort claims | 6 years | From the date the cause of action arises |
| Defamation claims | 1 year | From the date of publication of the defamatory statement |
| Personal injury claims | 3 years | From the date of the injury (or date of knowledge) |
| Claims by children | Period does not begin to run until the claimant turns 18 | From the claimant's 18th birthday |
Where a claimant fails to bring a claim within the applicable limitation period, the defendant may rely on the expiry of the period as a complete defence.
Vicarious Liability
Vicarious liability is a form of secondary liability that arises in certain relationships — most commonly that of employer and employee. Where an employee commits a tort in the course of his employment, the law allows the injured party to sue the tortfeasor's employer as well as, or instead of, the employee himself. This is a significant and practically important principle: the employer is made liable for the employee's wrongdoing without having personally committed the tort.
The rationale for vicarious liability includes the employer's ability to control the employee's conduct, the fact that the employer benefits from the employee's work, and the practical consideration that the employer is typically better placed financially to satisfy a damages award.
Tort Law and Human Rights
The Human Rights Act 1998 incorporated the rights contained in the European Convention on Human Rights into domestic English law. The Act allows individuals to rely directly on Convention rights before English courts and requires courts to interpret legislation compatibly with those rights where possible. The impact of the Human Rights Act 1998 on individual tort cases is, however, largely left to the discretion of the judiciary.
Significantly, English courts have held that it is not necessary to extend domestic tort law to create an entirely new tort of invasion of privacy solely to give effect to Article 8 ECHR (the right to respect for private and family life). In Wainwright v Home Office [2004], the House of Lords declined to recognise a general tort of invasion of privacy, holding that existing principles of tort law were sufficient to address privacy interests in the circumstances that arose. This remains the position in English law: the courts approach the interaction between the Human Rights Act 1998 and tort law on a case-by-case basis, incrementally developing the law as appropriate rather than creating sweeping new causes of action.