|
Introduction to the law of tort
The word tort comes from the French for wrong. In our legal system a tort or a civil wrong. Simiply stated liability in tort comes from a breach of duty owed by an individual to another individual or an infringement of a right of another person. The majority of these rights and duties have been delevoped over many years by judges in important legal cases. In some situations Parliament has passed legislation to craete a new tort, an example of this is the Occcupiers' Liability Act 1957.
Tort or Crime?
A tort is a civil wrong committed by one member of society against another member of society. A crime however is committed by an individual against the state. In tort one individual takes another individual to court, with crime the state takes an individual to court on behalf of society. The main aim of the criminal law is to protect society and to maintain law and order whereas the main aim of the law of tort is to provide the injured individual with a way of enforcing their rights.
Malice and the law of tort
The word malice refers to a state of mind and implies motive. In the criminal law the defendant's mental state is crucial in establishing if they are guilty of a crime. In the law of tort however the defendant's motive or mental state is usually irrelevant, except in a handful of torts. One tort where the defendant's mental state can be a factor in establishing liability is nuisance, this is illustrated by the case of Christie v Davey (1893).
Christie v Davey (1893)
Christie was a music teacher who used her home for giving lessons to her pupils. Her next door neighbour, Davey, was fed with with all the noise and he started knocking on the walls. When this didn't work he beat tin trays against the wall, whistled and shouted. Christie sued Davey in the tort of nuisance and the court held that both Christie and Davey were causing a nuisance. However, because Davey had acted maliciously he was liable. The court granted an injunction to stop Davey's actions.
Liability in tort is based on fault
The general rule is that there will be no liability without fault. Fault has a wide meaning in the law of tort, there may be an intention to do the wrongful act, for example one person deliberately played loud music late at night (nuisance). However more usually each tort will set an expected standard of behaviour and if a defendant fails to meet that standard they may be liable. For example in the tort of negligence a defendant will be liable if they are careless, in everyday life this is often seen in road traffic accidents where the driving at fault is liable to compensate the other driver due to their careless driving i.e. driving too fast. The arguement in favour of fault based liablity in tort is that it becomes a deterrent as members of society know that they may be liable to pay compensation to someone else should their behaviour fall below a certain standard and they commit a tort against anothe person.
However, one of the strongest arguements against fault based liability is that sometimes a claimant may not be able to prove fault and therefore will not be able to claim compensation. This can often be difficult in the tort of negligence in road traffic accidents and can result in an individual suffering injuries through no fault of their own but having no way of claiming compensation.
In 1978 the Pearson Committee recommended that there should be a no fault system of compensation introduced. The idea was that individuals injured in accidents would be entitled to compensation from a governement funded scheme as of right. This scheme has never been introduced in England & Wales. There is however such scheme in place in New Zealand which has been in existence for over 30 years.
Double Liability
 Sometimes one incident can give rise to double liability i.e. be both a crime and a tort. This will result in two separate court cases, one in the criminal courts and one in the civil courts. This is most common with road traffic accidents, often there is a crime e.g. careless driving and if someone is injured as a result of the careless driving there may be a civil claim in the tort of negligence.
Another example is the tort of conversion, this civil wrong is committed when someone's property is interferred with, for example keeping a library book or giving something away that belongs to another person (see Ballet v Mingay (1943)), the crime committed will of course be theft.
| 
