The Law Of Torts

Introduction To Tort Law

What is a Tort?

The word tort derives from the French word tort, meaning "wrong." DuPlessis and O’Byrne define a tort as “any harm or injury caused by one person to another—other than through breach of contract—and for which the law provides a remedy.”32 McInnes et al. define a tort as “a failure to fulfil a private obligation that was imposed by law.”33 Smyth et al. conclude that “there is no entirely satisfactory definition of “tort” but define it as a wrongful act done to the person or property of another.”34 Willes and Willes also emphasize that the area of tort law is “so broad that to determine its limits with any degree of precision would be an impossible task” but that tort law has characterized a tort as a “wrong committed against another, or against the person’s property or reputation, either intentionally or unintentionally.”

The basic premise of tort law is as follows: An obligation in tort law is owed to a person (e.g., there is an obligation to provide a client with sound accounting and business advice). If that obligation is broken, the accountant is a tortfeasor (one who has committed a tort), and the client would be entitled to sue the accountant for any injury or losses suffered. If the client wins the lawsuit, the court will hold the accountant liable and will probably order the accountant to pay damages to the client.

Although a tort and a crime may arise from the same set of facts (e.g., hitting someone involves both the tort of battery and the crime of assault; taking someone’s golf clubs is both a tort of conversion and a crime of theft), it is important to distinguish between the two. Figure  draws four key comparisons.

According to the Supreme Court of Canada, “A primary object of the law of tort is to provide compensation to persons who are injured as a result of the actions of others. “A second reason why tort law exists is to deter individuals from failing to fulfil private obligations.

Figure : Tort vs. Crime

Since both torts and contracts involve private obligations, it is also necessary to distinguish between torts and contracts. Both torts and contracts involve primary obligations that tell people how they ought to act and secondary obligations that tell people how they must act after breaking their primary obligations. Figure identifies four important differences between torts and contracts.

Figure : Tort vs. Contract

Contracts are enforceable only by parties to a contract under the doctrine of privity. More will be said about this in the next section on contracts.

Tort damages are backward looking, placing the plaintiff in the position he or she would have been in had the tort not occurred, whereas in contracts, damages are forward looking, placing the plaintiff in the position he or she would have been in had the contract not been breached. Managers are expected to anticipate the torts that are likely to occur in the course of operating their businesses and to make provisions for any liability that might arise as a result of those torts, either through insurance or self-funding.

Development of Tort Law

In our increasingly complex society, the risks of harm have grown rapidly. Often, injuries are discovered only "after the fact," e.g., illnesses suffered by women with breast implants or illnesses suffered by residents and workers in asbestos-insulated buildings. The basic issue is who should bear the loss? This question is often very difficult to answer in a society committed to increased productivity, because society as a whole benefits from advances in technology and production. Therefore, before proceeding to the specifics of tort law, it is worthwhile to review how the basis for liability has changed under tort law as society has developed.

Originally, the approach taken was one of strict liability, in which the person who was the direct physical cause of injury was held liable regardless of the reasons for the injury or whether the conduct of the “injurer” was justified. Because this was not perceived as fair, other bases for liability have come into play over the years. However, strict liability still persists in some areas of modern tort law, specifically for activities that are inherently dangerous regardless of the amount of care taken, such as transporting explosives. Strict liability may be imposed by legislation, or the courts may simply raise the standard of care so high that it is tantamount to strict liability.

Fault evolved as another basis for liability, where fault refers to “blameworthy or culpable conduct—conduct that in the eyes of the law is unjustifiable because it intentionally or carelessly disregards the interest of others.” Basing liability on fault makes sense if one believes that people will be more inclined to be careful if they have to pay the consequences for being careless. However, many activities where tort liability arises—driving a car, operating a store, practising medicine or accounting—are covered by insurance. As well, relying totally on fault could potentially leave victims uncompensated or undercompensated.

Social policy also plays a role in whether liability should be based on fault, strict liability, or some other principle. For instance, society may believe that those who reap profits from producing potentially hazardous products should bear the risk of loss, in part because they can either insure themselves or pass along costs to consumers.

Social policy may go so far as to eliminate lawsuits for personal injuries and compensate victims through a government fund, as is the case for no-fault insurance schemes and workers’ compensation. Such alternative compensation schemes recognize that victims deserve compensation even if their injury occurs innocently instead of as a result of a wrongful act. No fault schemes also respond to complaints about the cost and inefficiency of the adversarial tort law system. “Studies suggest that less than one-third of all the money involved in the tort system is actually used for compensating injuries.

On the other extreme, responding to the pressure of social needs has resulted in the principle of vicarious liability, to be discussed in more detail shortly, where en employer may be held liable for torts committed by employees in the course of their employment.

Main Types of Torts

There are three main categories of torts as shown in Figure. Each of these will be discussed in more detail later on.

Figure : Main Categories of Torts