1 – The Concept of Tort Law

Here’s my first question: should people be allowed to sue for being burnt by a cup of coffee, and receive millions in settlement?

My first reaction was absolutely not. Tort law is known for its frivolous lawsuits with huge payouts – but are they really as shallow as the media portrays them? Watch this video and see if it changes your mind.

But if Tort law isn’t just a platform for celebrities and silly people to make millions in settlement, what exactly is Tort law?

According to C. Harlow in Understanding Tort Law,

The word ‘tort’ […] is something of a puzzle […]. In fact it is the French word for ‘wrong’ and its use points us back through the centuries to the Norman French language, which was once the working language of the ‘King’s Courts’. A tort is simply a ‘wrong’ and Tort law is the law of ‘wrongdoing’ or perhaps ‘of wrongs’.

Helpful, if a little vague. M. Jones in Textbooks on Torts offers this definition:

The law of Tort is primarily concerned with providing a remedy to persons who have been harmed by the conduct of others.

This is probably the simplest definition you’ll get, free of all that legal jargon, and it’s my personal favourite. However although this is a great base to build on, you do need to be able to expand on this. T. Weir in An Introduction to Tort Law proposes:

The law of Tort is about when [civil] ‘liability’ exists (leaving aside any other ground of [civil] liability, such as breach of contract), and a ‘tort’ is conduct which renders the defendant liable unless he has some defence.

I am really not a big fan of this one, it seems overly complicated. The next definition is from Province of the Law of Tort by P. Winfield:

Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action or unliquidated damages.

Winfield’s definition is pretty to the point, but if you’re not accustomed to some of these fancy terms, it can be a hard one to memorise. S. Hedley’s definition in Tort is, in my opinion, the best legal summation of what Tort law is, as it is by far the clearest and simplest:

Where the claimant sues the defendant for a tort, the claimant is complaining of a wrong suffered at the defendant’s hands. The remedy claimed is usually a money payment. So proceedings in tort are different from criminal proceedings: in a criminal court, typically, it is not the victim of the wrong who starts the proceedings, but some official prosecutor. The remedy will also be different.

See? It’s hard to be clear and to the point when you’re using fancy terms and defining an abstract concept developed over centuries. But there’s also another reason these definitions are so vague. As put by Weir:

There is no general principle in English law to tell us when conduct is tortious […] and when it is not.

Helpful, right? People have tried to figure out a set principle for Tort law, but the area is much too wide and varied. However there is a test which tries to determine the standard of care for the tort of negligence. It was created by a judge in the US called Judge Learned Hand (I kid you not) for the case US v Carroll Towing [1947]. The case itself isn’t all that important so I’ll spare you the details, but essentially the ‘Learned Hand Test’ (or the ‘calculus of negligence’ test) finds negligence when the defendant’s burden B is less than the probability of harm P multiplied by the degree of harm D. So you get a formula that looks like this: B < P x D = negligence. How one can quantify the amount of harm someone has suffered is beyond me, but hey it doesn’t really matter because other than knowing what it means, you will not apply it in a case.

To go back to the point, here’s what I would take from the definitions:

  • A ‘tort’ is a wrong, i.e. conduct which renders the wrongdoer liable (unless they have a defence).
  • Liability arises from the breach of a duty fixed by the law.
  • These duties are towards people generally.
  • Tort law essentially provides a remedy to people who have been harmed by the conduct of others.
  • Every case will essentially boil down to the claimant complaining of a wrong suffered at the defendant’s hands.
  • The remedy is usually money, but it can be an action too.

It’s also helpful to know why an area that deals with these types of issues was even created. G. Williams lists the aims of Tort law, in The Aims of the Law of Tort, as:

  • Appeasement
  • Justice
  • Deterrence
  • Compensation

You could get an essay question along the lines of “Tort law is a frivolous imitation of Contract law and serves no real purpose other than lining the pockets of idiots and troublemakers. Discuss”. Obviously it would be worded a little differently, but you get the idea. So you should be prepared to define Tort law by comparing it to other types of law:

  • Criminal law:
    • the wrong done to the claimant is not necessarily a crime
    • the claimant is the one who starts the proceedings, whereas in Criminal law an official prosecutor does
    • the remedy is money or an action, not incarceration
    • the primary aim is to compensate and get justice for the wronged party, not punish the wrongdoer
  • Contract law:
    • the duty owed is fixed by law and towards the public in general, not between specific private parties and created by a mutual agreement
    • the remedy tends to be much greater than in Contract law, as it is not fixed by statute
    • the aim is to compensate the claimant, not to enforce an agreement between the parties

These are just a few of the differences, and I’m sure you can come up with more.

Okay, moving on.

There are four principal torts:

  • Negligence
  • Nuisance
  • Defamation
  • Trespass to the person (i.e. assault, battery, false imprisonment)

And four types of injury:

  • Personal
  • Property
  • Reputation
  • Financial interests

By now, you’re probably fed up with lists, so I’m going to stop here. I hope this was helpful, if a little boring, and I promise the next one won’t be such a brain dump…

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