H418/02 - Tort, fault and protected interests

Civil wrongs and parties

A tort is a civil wrong for which the law provides a remedy. Tortious liability means legal responsibility under the rules of a particular tort. Feeling harmed or offended is not by itself enough: the claimant must show that the relevant legal requirements are satisfied. Negligence, nuisance and trespass protect different interests and have different elements.

The claimant brings the civil action seeking a remedy; the defendant is the person against whom it is brought. A natural person is a human being. A legal person is an entity recognised as having legal personality, such as an incorporated company. Under Companies Act 2006 section 16, registration creates a body corporate. An incorporated company is not merely its director under a different name, and not every informal group is automatically a separate legal person.

Parties can appear in any combination. A pedestrian may sue an individual driver; a resident may sue a company; a company may sue a person who damages its property; one company may sue another. Whether a particular individual or employer is responsible still depends on the relevant rule, not simply on which defendant has more money.

Original example: a delivery company owns a van and a florist owns a shop. The company's careless employee damages the florist's window. The florist may seek compensation for property damage; deciding responsibility of the employer requires the separate rules on employer liability. Identifying the parties and loss begins the analysis without assuming its result.

Protected interests and aims

Tort protects interests recognised by specific legal rules. Negligence can protect bodily safety and physical property against careless harm. Trespass to the person protects bodily integrity; land torts protect possession or use and enjoyment of land. These examples identify interests, not a promise that every interference satisfies every tort. For instance, disappointment about a missed social visit is not automatically damage recoverable in negligence.

The main practical aim of many tort actions is a remedy for the claimant. Damages are money awarded for legally recoverable loss, usually aiming to put the claimant as nearly as money can in the position they would have occupied without the wrong. An injunction is a court order controlling conduct, useful where an ongoing interference cannot be adequately addressed by money alone. Details depend on the tort and remedy; a damages award is not usually a criminal fine paid to the state.

Several theories explain tort. Corrective justice links responsibility for the wrong to repairing the victim's loss. Deterrence encourages reasonable precautions by attaching consequences to harmful conduct. Loss distribution recognises that insurance or organisational liability may spread accident costs. These are explanations and evaluative aims, not independent causes of action. A court still needs a legal basis for liability.

The aims can conflict. Compensation helps an injured claimant, but money cannot undo a permanent injury. Deterrence may promote safety, but excessive precaution can suppress useful activities. Spreading insured costs can make compensation affordable while weakening the link between an individual's fault and who ultimately pays. A reasoned answer asks which aim the rule serves and at what cost.

Fault and defences

Fault may involve intentionally doing the prohibited act or failing to take legally required care. In negligence, the central fault is falling below an objective standard of reasonable care; the claimant need not prove a wish to injure. In Nettleship v Weston (1971), a learner driver was held to the competent-driver standard. The judgment illustrates that legal fault is not identical to moral blame: trying one's best can still fall below the required standard.

Some tort rules impose responsibility without proof that this defendant personally acted carelessly. Vicarious liability, for example, can make an employer responsible for an employee's tort where the required employment and connection conditions are met. That does not mean an employer is liable for everything an employee does. Nor should one assume that every tort is a strict-liability rule: analyse the elements of the particular tort.