What is tort?

The word Tort is derived from the Latin ‘tortum’, meaning twisted or wrong. Broadly
speaking, tort law is one of the methods by which the claimant obtains
compensation for injury or loss suffered as a result of the defendant’s wrongdoing.
Tort is a branch of the civil law (as opposed to criminal law, which will be discussed
later) where the claim is based on the breach of an interest that the law will protect.

The types of interests protected by tort are varied but at this point it is important to
note that not all interests are protected by the law of tort; a person could suffer a
loss as the result of another’s conduct for which the law does not provide
compensation. For example, the owner of a small shop on the High Street may
suffer a loss of business and reduced profit if a large discount store lawfully opens a
branch close by, but the loss is not recoverable in tort because no ‘legal’ wrong has
been committed by the discount store.

There is no single principle of tort law but a series of different torts which protect a
number of different interests against different kinds of interference. For example, the
law of tort protects the physical integrity of the person, through the tort of trespass
to person. Property interests are protected by trespass to land and the tort of
nuisance gives protection where the claimant’s enjoyment of land is interfered with
by noise or smells which are deemed to be unreasonable. A person’s reputation is
protected by the tort of defamation and economic loss that is intentionally inflicted
is protected by the economic torts such as deceit and inducing breach of contract.

In protecting these different interests, each tort has its own characteristics and a
range of specific remedies available for the loss or harm in question. For example, in
cases of traffic accidents or medical negligence, the remedy sought by the claimant is
likely to be damages or compensation – referred to as damages. As we have seen,
tort also deals with disputes between neighbours about their use of land. Here,
rather than seeking an award of financial compensation, the claimant may request
that the court grant an order to stop the nuisance – that is, an injunction to restrain
the defendant from continuing the interference.

In many torts material damage has to be suffered before there can be an action. In
other torts there is no need for the claimant to show material damage, it is sufficient
to show that one of the claimant’s rights has been interfered with. It is, for instance,
an actionable tort deliberately to touch another person even though no damage is
caused (although this is subject to many defences, discussed in Chapter 9). It is also
an actionable tort to defame someone in writing even though no damage is caused
(see Chapter 12). In such cases the tort is said to be actionable per se (i.e. in itself,
without proof of damage).

However, even if a person suffers a loss as the result of another’s tortious conduct, it
may be that the damage he or she suffers is of a kind that the law of tort will not
compensate. It is important to note that in reaching their decisions the courts take
public policy considerations into account to protect certain classes of defendant
against claims for compensation, such as social services and the National Health
Service.

An example of the type of harm less likely to be compensated can be illustrated

through the case of McFarlane v Tayside Health Board (1999) where the House of
Lords did not allow parents of a healthy baby girl to recover damages for the costs of
bringing up the child. In this case, the claimants, a married couple, had four young
children. They decided not to have any more children and Mr. McFarlane agreed to
have a vasectomy. The operation, carried at a National Health Service hospital, was
not successful.

Following the operation the consultant surgeon wrote to Mr. McFarlane and
informed him, incorrectly, that his sperm count was negative and that he could
dispense with contraceptive precautions. When Mrs. McFarlane conceived again a
healthy, but unplanned, baby girl was born. Although the parents stated that they
loved and cared for the child, they sued the health authority for the negligent failure
of the vasectomy performed on the husband and for negligent advice concerning his
fertility following the operation.

Mrs McFarlane claimed damages of £10,000 for the pain and distress of the
pregnancy and delivery. Mr. and Mrs. McFarlane jointly claimed £100,000, in
damages for the financial costs of the child’s upbringing until the age of 18. The
House of Lords unanimously rejected the claim for the costs of the child's upbringing
and refused to accept that the law might regard a normal, healthy baby as more
trouble and expense than it is worth.

According to Lord Slynn, claims in respect of the costs of bringing up a healthy child
born as a consequence of a failed sterilisation fall into the category of pure economic
loss (you will later see, pure economic loss is not recoverable in tort). Therefore,
although some costs, relating to the mother's pain and suffering during pregnancy
were allowed, the economic cost of bringing up a healthy child was not.

Lord Millett did not consider that the question in this case should depend on
whether the economic loss is characterised as pure or consequential. He thought
that the placing of a monetary value on the birth of a normal and healthy child is as
difficult and unrealistic as it is distasteful. He said:

“In my opinion the law must take the birth of a normal, healthy baby to be a
blessing, not a detriment. In truth it is a mixed blessing. It brings joy and
sorrow, blessing and responsibility. The advantages and the disadvantages
are inseparable.”

Tort and Criminal Law

In considering what tort law is, it can be distinguished from criminal law. The
distinction between tort and criminal law is in the nature of their objectives: in tort
law the objective is to enforce the law by compensating those who suffer damage
when the law is broken. The objective in criminal law is to enforce the law by
punishing those who break it. In a tort action, the claim is usually brought by the
individual who suffers the wrong, whereas in a criminal action the proceedings are
brought by the state on behalf of society. Claims in tort are heard in the civil courts
whereas criminal prosecutions are dealt with in criminal courts. In civil cases, the
burden of proof to establish liability is on the balance of probabilities, whereas in
criminal law the more stringent standard, beyond reasonable doubt, is required. The
terminology is also different: a defendant is ‘sued’ in tort but in criminal cases the
defendant is ‘prosecuted’ for the offence.

However, you should note that some tortious conduct is at the same time a crime:
examples are assault, battery, and public nuisance, and these torts can be
prosecuted as criminal offences as well as being the basis for a civil tort action.

Tort and Contract Law

In defining tort, it can also be distinguished from contract law. Winfield, said that
tort is characterised by duties ‘primarily fixed by law’ and owed ‘towards persons
generally’. This definition provides grounds for distinguishing tort from another key
area of civil law, such as the law of contract. The distinction between the two has
usually been explained in the following way: tort involves the breach of an obligation
imposed by the general law (if I knock you down by carelessly driving my car, I am
liable to compensate you because the law imposes a duty to drive carefully and not
because I have promised you that I will do so). In a breach of contract, the breach
involves an obligation voluntarily undertaken by the person in breach (if I fail to
deliver the car that you have bought from me, I am liable to compensate you
because I have failed to carry out my promise).

This distinction is however not watertight. In particular in recent decades a whole

area of tort law has developed based on a voluntary assumption of responsibility
(see liability for mis-statements in Chapter 5) and this has blurred the traditional
distinction between tort and contract.

Tort and Human Rights

You will find references to the European Convention on Human Rights (ECHR) at
various points in your subject guide. The rights which are relevant to tort law and are
beginning to have an impact on the development of case law are as follows:
• Article 2: Right to life
• Article 3: Right to freedom from inhuman and degrading treatment
• Article 5: Right to liberty and security
• Article 6: Right to a fair trial
• Article 8: Right to respect for private and family life
• Article 10: Right to freedom of expression.

For example, section 6 of the Human Rights Act 1998 makes it unlawful for a public
authority to act in a way which is incompatible with a Convention right. The courts
themselves are public authorities so the impact of the Human Rights Act can extend
into all tort cases in which Convention rights may be involved. This section therefore
has its greatest impact where the defendant to a tort action is a public authority
such as a local council.

Alternative sources of compensation

Social security
There exists in Britain what is described as a ‘mixed system’ of compensation. In
addition to awards of damages in tort, compensation is also available through social
security benefits, occupational sick pay schemes, private insurance and the Criminal
Compensation Scheme. However, the main source of compensation for accidents is
state benefit (also known as social security) because it is relatively quick, cheap, and
accessible to many. The tort system, underpinned by liability insurance, is seen as
supplemental to state benefit. The objectives of compensation provided by social
security benefits differ from those in tort. The tort system is committed to the
principle of full compensation, as far as is possible, and this has a significant
earnings-related component. The social security system does not aim to provide full
compensation, it is based on objective criteria with almost no earnings-related
component in the amount paid.

However, a distinct advantage in receiving state benefit is the lack of need to prove
any fault and, unlike most tort compensation, social security is paid on a periodic
basis. The aim of minimising the likelihood of double compensation under the social
security system is achieved by requiring successful tort claimants to repay most of
the social security benefits which they received for up to five years after the
accident.

Insurance
In most tort cases the defendants are, in reality, insurers who are disputing which of
them will compensate the claimant for the loss in question. Insurance significantly
supports the tort system and without it there would be little point in bringing the
majority of tort claims. The prevalence of insurance as a factor in most tort claims is
often cited as significantly undermining any deterrent value which tort law might
have.

Liability insurance expanded in the late nineteenth and early twentieth century. In
1930, legislation first required drivers to have third party insurance (see now the
Road Traffic Act 1988). The Employers’ Liability (Compulsory Insurance) Act 1969
imposes similar requirements upon employers regarding work-related accident and
disease. It is not surprising, therefore, that the vast majority of tort claims concern
road traffic accidents and injuries sustained at work. It is presumed that the
existence of insurance means that the defendants in these situations are likely to
have ‘deep pockets’. Insurance is now widespread and it is likely that householders,
schools, sports coaches, manufacturers, and professionals such as doctors will be
similarly insured in respect of the many situations in which tort claims could be
made.