THE NATURE AND FUNCTION OF THE LAW OF TORTS
General
Tort law is primarily concerned with compensation rather than punishment.
Typically, the plaintiff seeks to be financially compensated for suffering damage which
has been brought about by the defendant’s wrongdoing. There is a broad range of types of
damage which fall within the ambit of tort law: personal injury, damage to property,
damage to economic interests, interference with personal rights. Damages (the payment of
compensation), is one remedy available under tort law; another being injunction.
Injunctions seek to prevent further damage from occurring, rather than to compensate for
damage which has already occurred.
The range of circumstances in which tort law can be utilised in respect of claiming
damages ranges from road traffic accidents, workplace injuries, professional malpractice,
to deliberately violent acts and false statements. Tort law is primarily a private law matter,
which is horizontal in character (between private persons), whereas public law, which is
vertical in character (between private persons and the State), relates primarily to legal
relations between the State and the individual. Private law areas like tort and contract law
relate primarily to legal relationships between individuals.
The Functions of the Law of Torts
Tort law, like other areas of the common law, has developed over many centuries.
It has not been substantially codified, apart from statutory duties like occupiers’ liability
and liability for defective products, and therefore remains very much a creature of judicial
precedent.
The word 'tort' is derived from the Latin word 'tortum', which means wrong. Tort
law governs civil wrongs as supposed to criminal wrongs. Most individual torts require
some element of fault on the part of the defendant. It is only then that they can be
categorised as a 'wrong'. Certain torts, however, do not require fault to be demonstrated by
the plaintiff at all. These are strict liability torts, for example Rylands v. Fletcher, where
once the plaintiff shows that he has suffered loss or damage, and that it was the plaintiff’s
act or omission which caused that loss or damage, that will usually be sufficient for
liability to attach to the defendant. The application of strict liability is limited at common
law, and relates primarily to circumstances in which the defendant engages in hazardous
activity. However, Parliament has created strict liability torts through statute, notably the
Liability for Defective Products Act, 1991.
The degree of fault necessary to establish liability can vary from tort to tort. In the
tort of negligence, for example, the standard is measured as a failure to do as a reasonable
person would have done (or would not have done) in the circumstances. This is an
objective test, determined by reference to prevailing social standards. In some torts, mere
carelessness is insufficient. Intentional wrongdoing may be required in certain
circumstances, but intention is determined objectively, unlike the general approach to
intent in criminal law. In tort law, defendants are presumed to intend the probable
consequences of their actions, whether, subjectively, they did or not. The degree of fault
required depends on the type of risk undertaken by the defendant. There has been a
significant debate amongst academics the judiciary as to the precise scope of, and level of,
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fault required to determine that liability exists. This can be seen in relation to the different
approaches taken by the judiciary in various common law jurisdictions as to how the duty
of care in negligence should be determined.
The main function of the law of tort is to determine whether a wrong has been
committed, and if it has, to provide a remedy. Damages is the dominant remedy at
common law, but the equitable remedy of injunction is also important, and becoming more
so. It is important, however, to remember that not all losses can be compensated for. It is
only in circumstances where a wrong has been committed that tort law will step in to
ensure that a remedy is available. Where loss results from a 'pure' accident, that is, where
no one person is at fault, that loss will usually go uncompensated. Even where
compensation is due, the law of tort allows for compensation payable to the plaintiff to be
reduced where the plaintiff is deemed to have contributed to the loss themselves, for
example, through the defence of contributory negligence.
Another key function of the law of tort is deterrence of future wrongdoing. Judicial
rulings as to the nature of wrongdoing may define for society as a whole what the limits of
acceptable behaviour actually are. However, the deterrent effect of tort law is difficult to
measure. There are many factors that have a significant bearing on whether the outcome
of a case has any real deterrent effect, for example public awareness and willingness of the
public to modify behaviour. Driving on the public highway is a simple example. Do
drivers modify their driving such that it is safe because of the fear of being sued in the civil
courts rather than the fear of being prosecuted in the criminal courts? It is, however, clear
that professional bodies, like the Law Society, the Institute of Chartered Accountants, and
the Medical Council, take notice of court decisions and alter professional practice
accordingly.
The view that law and justice go hand-in-hand can, unfortunately, be overstated.
Justice frequently must yield to pragmatism such that the legal system can be administered
efficiently. This is particularly so in criminal law, but also the case in civil law.
Sometimes, for example, a litigant may not succeed in securing a remedy even though a
clear injustice has been done to him or her. These sorts of decisions are frequently referred
to as ‘policy’ decisions. ‘Policy’ often plays a role in denying litigants remedies for pure
economic loss in cases not involving negligent misstatement or psychiatric injury, where
there is an absence of proximity between the person suffering the physical injury and the
person suffering the psychiatric injury.
Tort law is predominantly concerned with corrective justice in that it seeks to
rectify wrongs. This usually involves transferring the harmful effect from the plaintiff to
the defendant through the payment of money damages. However, tort law does not always
allow this to happen. The judiciary must take into account the public interest, or, as stated,
public policy, such that the plaintiff may not receive a full remedy or a remedy at all. This
can occur in relation to alleged wrongs or failures committed by public authorities, where
the courts may find that no duty of care is owed by them to an individual that suffers as a
result of that act or omission. Tort law is also concerned with distributive justice, which is
relates to distributing the cost of the harm as broadly as possible across society. The effect
of this is that the injured plaintiff is granted a remedy against a person, other than the
immediate wrongdoer, who is in a position to offset the costs involved by passing them on
to others. This can occur through the insurance fund or vicarious liability in respect of
employers.
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