Keith Mack
Tort law is the branch of law that deals with civil suits, excluding contractual disputes. It addresses private wrongs and aims to compensate the victim rather than punish the wrongdoer. Tort law in civil law jurisdictions is derived from Roman law, while common law jurisdictions derive their tort law from customary English tort law. Common law jurisdictions include legal systems descended from English law, such as those of Australia, Canada, New Zealand, Singapore, the United States, and more. In common law systems, tort doctrine has largely developed through judges' decisions in private disputes. The primary aims of tort law are to provide relief to injured parties, impose liability on the responsible party, and deter harmful acts.
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What You'll Learn
Tort law's purpose is to compensate victims, not punish wrongdoers
Tort law is a civil law that deals with civil wrongs, as opposed to criminal law, which deals with criminal wrongs. While criminal law aims to punish individuals who commit crimes, tort law's primary purpose is to compensate individuals who suffer harm as a result of the actions of others. The term 'tort' is derived from the Latin 'tortum', meaning 'something twisted, wrung, or crooked'.
Tort law is concerned with two fundamental questions of morality and social life: how people are permitted to treat each other, and whose problem it is when things go wrong. It is distinct from contract law, which provides civil remedies after a breach of duty that arises from a contract. Obligations in tort law are more fundamental and are imposed regardless of whether the parties have a contract.
The primary aims of tort law are to provide relief to injured parties for harms caused by others, to impose liability on parties responsible for the harm, and to deter others from committing harmful acts. In most cases, a party seeking redress through tort law will ask for damages in the form of monetary compensation. However, in some cases, courts may also award punitive damages in addition to compensatory damages to deter further misconduct.
While the main purpose of tort law is to compensate victims, some common-law jurisdictions, notably the United States, retain a strong element of punishment in their damage awards for certain types of tortious conduct. These punitive or exemplary damages are awarded to make the wrongdoer not only compensate the plaintiff for their loss but also to disgorge any gain made from their conduct. However, in Japan, punitive damages are forbidden on public policy grounds, and Japanese courts regard the compensation of plaintiffs as the paramount purpose of damages under tort law.
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Tort law is distinct from criminal law
The purpose of criminal law is to provide basic protection to society from antisocial acts. Although crimes may have immediate victims, such as the owners of homes burned down by an arsonist, the ultimate victim of a crime is society as a whole. For instance, if an arsonist is not stopped, they pose a danger to everyone. Criminal law is not concerned with the individual victim, but rather with safeguarding society from such antisocial behaviour.
On the other hand, tort law provides a way to compensate victims of wrongful acts for their financial harm. The focus of tort law is on the victim and what they can do about the financial harm they have suffered. Tort law is concerned with the individual victim and their right to compensation for the breach of particular duties owed to them.
Tort law covers a wide range of civil wrongs, including negligent injury, battery, deceit, defamation, interference with one's possessions or property, and economic interests, among others. These acts can be intentional or unintentional and can lead to personal injury or property damage.
The distinction between tort and criminal law can be blurred in some cases, such as assault and battery, which can result in both a civil lawsuit and criminal prosecution in countries with separate legal systems. However, intentional torts are often mistaken for crimes, as they sometimes align with criminal conduct. The key difference lies in the purpose and focus of each area of law, with tort law focusing on compensating victims for their financial harm, while criminal law seeks to punish wrongdoers and protect society.
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Tort law is derived from customary English tort law
Tort law is a legal concept that deals with civil wrongs, as opposed to criminal wrongs, and seeks to compensate victims for harm caused by others. It is derived from customary English tort law in common-law jurisdictions, which includes countries like Australia, Canada, New Zealand, Singapore, and the United States.
The term "tort" comes from the Latin word "tortum," meaning "something twisted, wrung, or crooked." In common law, a tort refers to any instance of harmful behaviour, such as physical attack, interference with possessions or property, invasion of privacy, or economic interests. Tort law aims to provide relief to injured parties and impose liability on those responsible for the harm.
Customary English tort law has played a significant role in shaping the legal systems of these countries. The common-law approach to torts is characterised by being more casuistic (case-based) and judge-made, in contrast to the more abstract and systematised approach of civilian systems. This means that tort law in common-law jurisdictions has evolved through judicial decisions made in private dispute resolutions.
One key aspect of tort law derived from customary English tort law is the concept of negligence. Negligence requires that people exercise appropriate care around the bodies and property of others, reflecting a basic moral and social norm. Another example is battery, characterised as "unauthorised touching" in English law and "harmful or offensive touching" in American law.
Additionally, tort law in common-law jurisdictions may include punitive or exemplary damages that aim to punish the defendant and deter future misconduct. While punishment may not be a primary aim of tort law today, it still plays a role in certain cases, particularly in the United States.
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Tort law is concerned with basic norms of conduct
Tort law also protects property against various forms of interference, including unauthorized use, willful or careless damage, and, in the case of land, against unauthorized entry and loss of usefulness. In addition, tort law covers most civil suits, with the exception of contractual disputes. It is concerned with redressing wrongs done to people and providing relief from the wrongful acts of others, usually by awarding monetary damages as compensation. The original intent of tort law is to provide full compensation for proven harms.
Tort law is derived from customary English tort law in common-law jurisdictions. It engages with two fundamental questions of morality and social life: how people are permitted to treat each other and whose problem it is when things go wrong. The common law of torts does not protect certain interests that might be considered equally pressing, such as the interest in adequate resources or a favorable context in which to pursue one's purposes.
The main remedy available to plaintiffs under tort law is compensation in damages, or money. In some cases, such as continuing torts or where harm is threatened, courts may grant an injunction. While tort law in civil law jurisdictions is based on Roman law, common law jurisdictions have developed their tort law through judicial decisions addressing private disputes. This has introduced considerable diversity into the common law, with statutes and regulatory regimes sometimes displacing parts of it.
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Tort law is a form of restorative justice
Tort law is considered restorative justice as it focuses on repairing the harm caused and rebuilding trust between the parties involved, rather than solely on punishment. It provides a platform for victims to express their feelings, ask questions, and discuss the impact of the offence on their lives, empowering them and helping them move forward from their experiences. Additionally, restorative justice requires offenders to confront the consequences of their actions and understand the impact on their victims, which can lead to a change in behaviour and a reduction in reoffending.
The common law of torts, prevalent in legal systems descended from English law, including Australia, Canada, New Zealand, Singapore, and the United States, developed through judicial decisions addressing private disputes. It is derived from the Latin 'tortum', meaning "something twisted, wrung, or crooked". The basic norms of tort law, such as negligence and battery, reflect familiar moral and social norms. For example, the norm of negligence requires individuals to exercise appropriate care around the bodies and property of others.
The purpose of tort law is to hold people responsible for the damage they cause and to deter others from creating dangers. It emphasises the idea of responsibility and accountability, with the understanding that individuals have rights against certain types of conduct by others. This includes rights related to physical attacks, interference with possessions or land use, economic interests, honour, reputation, and privacy.
In summary, tort law, a form of restorative justice, seeks to address civil wrongs and provide relief to victims by holding wrongdoers accountable and deterring future harmful acts. It focuses on repairing harm, empowering victims, and promoting behavioural change to build a more harmonious society.
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Frequently asked questions
Tort law covers most civil suits, excluding contractual disputes. It addresses private wrongs and aims to compensate victims for harm caused by others.
The term 'tort' is derived from the Latin word 'tortum', meaning "something twisted, wrung, or crooked".
Tort law in common law jurisdictions is derived from customary English tort law. It is based on precedent and theory rather than an exhaustive code.
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