A tort is a civil wrong. A tort is an action by on citizen against another for monetary or other redress for a wrong committed. Tort comes from Norman French and means injury. It provides a remedy where one citizen has harmed another. Tort law derives from the Common Law and grows through precedent.
A tort case is one citizen prosecuting another. The state, other than trying the case, is uninvolved in the prosecution process. This contrasts with criminal law, where police investigate and the state prosecutes. Tort law does however relate, in certain circumstances, to criminal law Halford v Brookes 1991. In some circumstances, the same facts can involve both tort and criminal liability. English Civil law, on which most English-speaking nations based their law, is well grown in this area. This article refers to the law of England and Wales. Civil cases rarely use juries now, and, in tort, only defamation cases now use juries.
Tort law is essentially balancing one citizen’s protected interest against another’s breach of obligation or duty. However, the two people involved may not have any contractual relationship. Contract is a separate legal area, with its own rules.
Tort provides either a monetary remedy or a court order or injunction. Injunctions order someone to do something or prevent someone from doing something. Describing tort law is difficult, since it covers miscellaneous civil wrongs. Tort is a huge topic; a small article cannot possibly cover it, however by examining the major torts that people encounter in daily life one can see its principles. Torts include negligence, nuisance, defamation, trespass, malicious prosecution and more.
Negligence
English law defines negligence as the doing or omitting to do something, which a reasonable person would or would not do in the circumstances, and thus injuring his neighbour. Donaoghue v Stevenson 1932 is the classic case in negligence and describes “The Neighbour Principle”, which identifies our neighbour, and the degree of care he requires. “Those who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected, when I am directing my mind to the acts or omissions, which are called into question.
One must consider one’s neighbour to a degree, reasonable in the circumstances. Hall v Brooklands Auto-Racing Club 1933 defined the reasonable person, as an ordinary person, “the man on the Clapham Omnibus”. If one’s neighbour is a child, the required care standard is much higher. A defendant having a particular skill, for example, a doctor, must act, as any reasonable doctor would do. The person, alleging negligence, must prove that negligence, rather than an accident, occurred and there must be reasonable evidence that negligence happened for the jury to consider the case. The Privy Council decided in The Wagon Mound 1961 that some damage must be reasonably foreseeable for there to be negligence liability. A defendant, who foresees, or should foresee, some damage or injury resulting from his action is negligent, even where the damage that actually occurs is to a different degree to that envisaged.
Judges and lawyers talk about causation in negligence cases, which sounds complicated but only means that the defendant’s action must cause the resulting damage. In Barnett v Kensington and Chelsea Hospital Management Committee 1969 A casualty department doctor, who told a man to go and see his family doctor, rather than treating him, did not negligently cause his death from arsenic poisoning, because the man was already beyond any help the doctor could have given.
Nuisance
English law recognizes two kinds of nuisance, Public and Private Nuisance. Both Public and Private nuisance is using land in a way that interferes with others. Private nuisance torts are those interfering with a neighbour’s (normal meaning) ordinary enjoyment of his land, usually by allowing things to escape from land, noise, animals, odours plants etc. Private nuisance is substantial and unreasonable interference with your neighbour’s right to peaceful enjoyment of his property. In private nuisance, the court must balance the defendant’s right to use his land as he wishes against the plaintiff’s right to enjoy his own land. Each case turns on its own facts and the court will consider all circumstances in deciding whether the defendant has committed a private nuisance, for example, behaviour reasonable in an industrial area will be unreasonable in a quiet residential area.
Private nuisance is always a civil matter whereas Public Nuisance is also a criminal wrong. It is an act, or omission, obstructing, damaging, or inconveniencing the community’s rights. Public Nuisance threatens community health, morals, safety, comfort, welfare or convenience. The defendant in such a case may receive a criminal sentence, fine, or both and the court may require also that he remove the nuisance or pay for its removal. Someone polluting a stream might receive a criminal fine and the court may order him to pay for the stream’s detoxification. Keeping diseased animals, lighting fireworks in the street, a bordello, illegal drinking den, or gambling establishment, obstructing the highway, and much more have been judged a Public Nuisance in the past.
Defamation
When famous people are suing one another for libel, they are using the law on defamation. A slander is a spoken lie, a libel a published lie, a spoken comment on a television or radio programme is libel rather than a slander. However, whilst a 2006 ruling ruled defamatory chat room comments as libel, a 2009 High Court judgment ruled comments on an internet bulletin board are slander.
Any defamation must be a lie and must make ordinary people think badly of the victim affecting his reputation and standing in the community. The court will only consider serious reputational damage, and the degree to which the slander, or libel, has affected that reputation. Thus, if you were to go around in your community saying falsely that a local butcher’s shop was unhygienic and it sold rotten meat and the butcher’s business then went bankrupt, entirely because of your comments, you could be liable for damages for slander. This is because a butcher’s business relies on customers’ confidence that the shop is hygienic and that the meat it sells is fresh, for their custom. Bloggers and other Internet writers may want information on how to avoid defamation actions.
The defences against defamation actions are justification, honest comment, and privilege. Where words are true, or substantially true, there is no defamation. Honest comment applies to personal opinion, e.g. a restaurant or theatre review. To defend a defamation action, the defendant must show that his comment was recognizable comment rather than factual allegation, or that it is based on true facts, which the commenter must explicitly or implicitly indicate to the reader, and that the public has a legitimate interest and concern on the question. However, if the plaintiff is able to show that the defendant made the comments from malice, rather than expressing genuine opinion, he can defeat an Honest Comment defence. Showing that the defendant acted maliciously is difficult, requiring rather more than showing that the comment was prejudiced, exaggerated, or unfair.
The courts balance public interest against people’s right to a good reputation. Privilege comes in two varieties. Absolute privilege occurs where the public interest overrides the need to prevent damage to people’s reputations. Defamation actions cannot result from statements by MPs during Parliamentary proceeding or in reports on such proceedings, Court reports, which are fair, accurate and contemporaneous, and complaints and statements about crime made to police officers. 1996 Defamation Act schedule 1
Qualified privilege applies to people commenting under a social, moral, or legal duty to someone having particular interest in receiving those comments. Each case turns on its own facts and finding the duty and interest depends very much on the individual circumstances. The interest is much more than gossip or curiosity. The courts have deliberately not described this defence in detail, but have developed the law regarding newspapers and other publications Reynolds v Times Newspapers LTD House of Lords 1999.
Space forbids describing Tort law fully here. The above are the Torts that most people encounter in daily life. Tort arises from common law rules that have evolved through centuries and is still growing. Recently, the courts have been developing a new tort, invasion of privacy, growing from defamation law, but apparently now slowly becoming a separate tort. Whether privacy invasion becomes a 21st, century tort is uncertain. Tort is a fascinating topic for lawyers, judges, students, journalists and others with an interest to study and discuss. Major components of tort law, negligence, nuisance or defamation, affect many people’s lives. Tort law, like all law, is balances competing interests and enables people to live complicated lives, in a stable, generally law-abiding society. Tort law is evolving now, as it always has, to meet new circumstances and needs.
Off line Sources: Textbooks on Torts Michael A.Jones fourth edition 1993