Edition: January 2010

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Understand Tort

By: David Skul

Tort law is different from the laws of contract, restitution, and the criminal law. Contract law protects the parties involved when expectations arise from promises, restitution prevents unjust enrichment and compensation for wrong doing, and criminal law punishes crimes that are so severe (like murder, rape, fraud) that society has a direct interest in preventing and dealing with them. Note that many wrongs can result in liability to both the state (as criminal activity and proceedings) and to the victims (as torts).

Tort law serves to protect an individual’s interest in their bodily security, tangible property, financial resources, or reputation. Interference with one of these interests is usually met by an action for compensation, most usually in the form of unliquidated damages. The law of torts aims to restore the injured individual to the position they were in before the tort was committed (the expectation or rightful position principle).

In most countries, torts are usually divided into three general categories: intentional torts, negligence and nuisance. Additional categories or subcategories may be recognized in other countries. Some torts are liability torts. This is when the plaintiff may recover by showing only that they suffered an injury, that caused damages, and that the defendant was responsible for causing the damages. There never a need to show the defendant's state of mind or that the defendant breached a duty of reasonable care.

Definition of a tort:

In his famous treatise, Handbook of the Law of Torts, William Prosser defined "tort" as "a term applied to a miscellaneous and more or less unconnected group of civil wrongs other than breach of contract for which a court of law will afford a remedy in the form of an action for damages."

In a limited range of cases, tort law will tolerate self-help, for example, using reasonable force to remove a trespasser. I addition, in the case of an ongoing tort, or where harm is merely suggested, the courts will sometimes grant an injunction to restrain the ongoing threat of harm.

Purposes of torts:

The law of torts assesses whether a loss that affects one person should or should not be placed upon another person. Some of the consequences of injury or death, such as medical expenses incurred, can be compensated through payment of damages. Damages may also be compensated, for non-pecuniary damages, such as pain.

The law of tort can be confusing to many, but as an informed society member we can be wary of its effects on us personally and the nation as a whole. Legal responsibilities can often become overwhelming individually or personally if proper care is not taken.

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