What is tort law?

Thomson Reuters defines tort law as ‘the name given to the branch of law that imposes civil liability for breach of obligations imposed by law.’ A tort, therefore, is a civil wrong resulting from someone – the tortfeasor – unfairly causing another to suffer loss or harm. This civil wrong is referred to as a tortious act. Loss or harm includes injury, emotional distress, reputational damage, and economic loss – such as loss of past or future earnings.

The law of tort is an area of common law comprising a wide-ranging body of rights, obligations and proceedings related to wrongful or negligent acts. Through civil proceedings, it seeks to gain redress, remedies and relief for those affected, and to determine whether someone should be held legally accountable for injuries against another. Tort law is known as one of the most challenging areas of the legal system to apply all-embracing principles to – but is an area of law focused on restorative justice.

There are four types of damages that may be awarded in a successful tort action:

• nominal damages (small sums of money)
• compensatory damages (money equivalent to the damage suffered – such as covering medical expenses)
• aggravated damages (compensation plus additional for distress or injury caused)
• exemplary/punitive damages (large sums of money intended as punishment – such as when organisations are fined for being liable).

A tort differs from a crime in that torts are concerned with wrongs between individuals, and crimes with violations of public rights that affect social order.

What are the different types of torts?

Torts can be either intentional or unintentional.

Intentional torts refer to wrongful acts committed on purpose and in instances where the person is fully aware of their own actions.

For example, intentional tort claims relate to:

• battery
• assault
• false imprisonment
• intentional infliction of emotional distress (IIED)
• fraud/deceit
• theft
• defamation
• invasion of privacy
• trespass (to land and property)
• conversion.

Unintentional torts are usually related to the tort of negligence – the largest, most dynamic area of tort law. Torts are regarded as unintentional if they relate to actions individuals did not mean to do, and that a reasonable person would know not to do. Personal injury claims proliferate in this space, from road traffic accidents to accidents at work to accidents in public spaces. It’s estimated 75% of personal injury cases don’t make it to court and are settled outside of official proceedings.

For example, unintentional tort claims and negligence cases often relate to:

• slips and falls
• vehicle accidents
• medical malpractice.

To prove a tort is unintentional, three criteria must be met.

1. The defendant caused the injury or injuries.
2. The defendant failed to provide the standard of care of a reasonable person.
3. The defendant owed the claimant/plaintiff an obligation to avoid careless action.

There are also torts involving strict liability – established via the famous Rylands v Fletcher court case regarding tort of nuisance/private nuisance. Crimes in this category require no proof of mens rea (the ‘mental element’ that is key to other torts) in relation to one or more aspects of the actus reus (the act or omission relating to the physical elements of the crime). Unlike intentional torts and negligence, they are concerned with the act itself rather than the tortious individual. They are often regulatory offences, many of which are directed as business and relate to health and safety, but also covering offences such as non-insured driving and speeding.

Examples of strict liability torts include:

• defective products (product liability)
• animal attacks
• abnormally dangerous activities.

In cases of absolute liability, defences of reasonable mistake of fact are not permitted – and full legal responsibility for damages and injury is taken with no jurisdiction.

The four elements of a tort case

In order for a tort claim to be deemed well-founded, a breach of duty must have been made by the defendant against the plaintiff, resulting in injury.

• Duty – There is an owed duty that exists between the defendant and the victim. This can be a duty to do something (for example, provide a reasonable standard of care via a safe working environment), or not to do something, (for example, behave in a certain way that is deemed dangerous).
• Breach of Duty/Violation of Duty – The defendant violates the duty in some way (for example, failing to take reasonable care and supply safety equipment for a hazardous job).
• Causation – The violation of duty causes injury to the victim, and a proven, direct link connects the defendant’s actions with the victim’s injuries (for example, the victim suffers a chemical burn at work from not being provided with appropriate PPE).
• Injury/Damages – There is clear, proven and significant suffering sustained by the injured party.

If the four elements can each be proven and connected, then the victim – known as the claimant – has established the right to recover damages. In such cases, tort of breach of duty is evident.

Defences to tort actions

Generally, three defences to tort actions exist.

• Contributory negligence (a partial defence) – where it must be decided whether the claimant acted negligently, whether their actions contributed to the damage suffered, and to what extent the damages should be reduced.
• Voluntary acceptance of risk (‘volenti non fit injuria’) – where the claimant must have agreed to the risk, have had full knowledge and awareness of the risk, and have freely given consent regarding the risk.
• Illegality (‘ex turpi causa non oritur actio’) – where damage happens within the context of an illegal act.

Advance your understanding of the principles of tort law

Want to learn more about the tort of duty, breach of contract, duty of care, and other key areas of tort law? Do you know the difference between tortious liability and vicarious liability?

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