English Tort Law

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ContentsNegligence

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INTRODUCTION

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Tort law is concerned with compensation for damage suffered as a result of another's acts or omissions. The word is ultimately derived, by way of French, from the Latin torquere, to twist. Tort law covers all civil wrongs, other than contractual disputes, for which there is a remedy. It implies acts that bend or warp societal rules prohibiting causing harm to others. The history of tort is the history of legal interpersonal relationships. One definition of tort is:

Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
Winfield and Jolowicz on Tort. 19th Ed.

Comparing a tort and a crime

The purpose of tort is primarily to compensate the victim of a wrong. The claimant (plaintiff) brings a civil action against a defendant. The claimant has to prove their case on the balance of probabilities. “Unliquidated” (unspecified) damages” means an amount determined by the court.

The purpose of criminal proceedings is primarily to punish the criminal. The state (“ the Crown”) prosecutes the defendant and has to prove guilt beyond reasonable doubt. However, one event can give rise to both criminal and tortious liability. Examples include:

  • An assault on a person
  • Damage caused by drink and/or dangerous driving
  • A fraud

Comparing a tort and a breach of contract

A defendant is liable for breach of contract because they have broken an agreement with the claimant. Tortious liability mostly does not depend on any agreement between the claimant and the defendant. Instead liability is imposed by law. One event can give rise to claims for both tort and breach of contract – in fact one event can be a tort, a crime and a breach of contract. For example:

  • Professional negligence
  • Accidents at work

Why is tort law needed?

  • Compensation
  • Deterrence
  • Economic efficiency (market deterrence)
  • Fault
  • Loss Distribution
  • Retribution

Compensation

The main remedy against tortious loss is compensation in 'damages' or money, to put the claimant in the same position as if the tort had not been committed. General damages are available for pain, suffering, loss of amenity etc. The amount is usually based on previously decided cases. Special damages can be calculated mathematically e.g. loss of wages.

A major role is played by insurance such as third party (liability) insurance, which is mandatory for employers and motorists. Proceedings are brought against the tortfeasor even though the “real” defendant (i.e. the bill-payer) is the insurance company. First party (loss) insurance is designed to protect the insured person against loss or damage to themselves or their property. Consequently this involved the principle of subrogation whereby if an insurer pays out on a claim by the insured, then the insurer can undertake a claim in the insured’s name, against a third party in respect of their losses. So, a tort is sometimes a dispute between two insurance companies, although this will not be mentioned in the case documents.

Contents ▮ Negligence