The Law of Torts

Definition

 A tort is a type of civil wrong. It is a breach of a legal duty or an infringement of a legal right which gives rise to a claim for damages.

As a tort is a breach of a legal duty, there is no liability unless the law recognises that the duty exists.

Differences between contracts and torts

A contractual relationship does not have to be established for a claim in tort to be successful. Often the parties have never even met before. For example, in a claim for personal injury as a result of a road accident, the parties will often have had no previous relationship at all.

If a contract does exist and a tort has been committed, the claimant may choose the remedy most appropriate.

There are two options:

• Under a valid contract, the amount of damages awarded is intended to put the claimant back in the position he would have been in had the contract been properly performed.
• In tort, the amount of damages awarded is intended to put the claimant in the position he would have been in had the tortious act never taken place.

Limitation periods

• In contract the limitation period is six years from the breach of contract.
• In tort the limitation period is generally six years, but three years for personal injury.

The main elements of a tort

In order to be successful in an action for tort, the following conditions must be satisfied:

• There must be an act or omission by the defendant.
• The act or omission must have directly caused loss to the claimant.
• The courts must be able to establish a legal liability as a result of the damage.

A claim will only be successful if the loss suffered is not 'too remote' i.e. the loss must be as a direct consequence of something the defendant did/or did not do.

Types of Tort

Nuisance

The tort of nuisance allows a claimant to sue for most acts that interfere with their use and enjoyment of their land.

The tort of nuisance is separated into private nuisance and public nuisance.

Private Nuisance

The law recognises that landowners, or those in rightful possession of land, have the right to reasonable comfort and convenience in its occupation.

Public Nuisance

Under criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.

Examples include a manufacturer who has polluted a stream, the keeping of diseased animals or shooting fireworks in the street.

Trespass to Land

Trespass to land occurs where a person directly enters upon another's land without permission, or remains upon the land, or places or projects any object upon the land.

This tort is actionable per se without the need to prove damage.

Trespass to Person

Generally, trespass to the person consists of three torts: assault, battery, and false imprisonment.

Battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person. There must be actual contact.

Assault is the intentional act of putting an individual in reasonable fear or apprehension of immediate battery. There does not need to be actual battery and therefore not necessarily any contact.

False imprisonment is where a person is unlawfully arrested, imprisoned or prevented from leaving where they are.

Negligence

Negligence is the breach of a legal duty to take care, which results in damage to another.

In order for an action in negligence to succeed, the claimant must prove the following:

• That a duty of care was owed to him by the defendant
• The defendant breached that duty
• As a consequence of that breach, damage or loss has been suffered.

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