The Aims of the Law of Tort

"An intelligent approach to the study of law must take account of its purpose, and must be prepared to test the critically in the light of its purpose. The question that I shall propound is the end or social function or raison d'etre of the law of tort, and particularly of the action in tort for damages. It is commonly said that the civil action for damages aims at compensation, as opposed to the criminal prosecution which aims at punishment.

This however, does not look below the surface of things. Granted that the immediate object of the tort action is to compensate the plaintiff at the expense of the tortfeasor, but why do we wish to do this ? Is it to restore the status quo ante, but if so, why do we want to restore the status quo ante ? And could we not restore this status quo ante in some other and better way, for instance by a system of national insurance ? Or is it really that we want to deter people from committing torts ?

Or, again, is it that the payment of compensation is regarded as educational, or as a kind of expiation of a wrong ? " Glanville Williams "The Aims of the Law of Tort" [1951] CLP 137 The law of Tort does not lend itself to a simple definition. Generally, criminal law is the action of the state to punish the individual. A straightforward description is that a tort is a 'wrong'. The law of tort protects certain interests of the individual. If those interests are affected in anyway a tort action can be pursued under civil law.

It is primarily concerned with providing a remedy to the individual who has been wrongfully harmed by the conduct of another or others who have disregarded their obligations imposed upon them by law. A critical analysis of Tort law will therefore require an understanding of the reasons for tort law, the obligations upon all citizens imposed by law and of the compensation and other remedies that are provided for harms caused by breach of such obligations.

In brief, the historical origins of the law of tort appear to have developed from the common law of obligations. The origin of obligations as a category of law lies in Roman law1. In the sixteenth century there was no clear concept of tort or contract although general concepts were present. Eighteenth century lawyers came to distinguish between direct or forcible injury (trespass) and indirect or consequential injury (case). In Williams v Holland2 the court recognised an overlap between trespass and case.

The English writ system prevented the development of categories of law such as contract or tort until the nineteenth century. The modern tort of negligence saw its beginnings in the nineteenth century3. Important areas of tort law include negligence, nuisance, trespass to the person, trespass to property, liability for psychiatric harm, product liability and employers' liability. A claim in negligence would require the plaintiff (wronged party) to prove that, firstly, the defendant owed him a duty of care, and secondly, that the defendant was in breach of that duty.

The weight of case law therefore imposes a further requirement to the effect that it should be just (or fair) and reasonable that a duty of care should be imposed4. The test for deciding whether there has been a breach of duty is laid down in the often cited dictum of Alderson B. in Blyth v. Birmingham Waterworks Co. 5 Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do6.

Most actions in tort are for damages, which generally aim to redress the harm caused by the 'wrongdoer' by awarding monetary compensation to the wronged party (plaintiff) in order to restore them to the position, as it would have been had the tort not been committed. A traditional view of the aims of tort law is one of corrective justice such that any loss sustained by the plaintiff as a consequence of fault by the tortfeasor should be compensated by the tortfeasor. This appears to be a fair approach, in that the wrongdoer is being held to account for his/her actions.

The problems appear to arise in firstly establishing fault, the situations in which it applies, whether it is reasonable to apply it in the first place and then how to redress or compensate for the initial harm caused. Another view is to distribute the responsibility and therefore the loss more widely rather than confining it to an individual and in doing so possibly creating a fairer system of compensation. Examples of loss distribution are seen in vicarious liability (employer responsible for torts committed by his/her employees) and in insurance schemes (for example, motor insurance).

Although an insurance based system provides what seems to be reasonable and fairer method of loss distribution it can be argued that it undermines the deterrent effect of tort law. Those who have studied tort from the perspective of economic theory favour the deterrent aim of tort7. Fear of legal liability and the resulting awards of damages provides an incentive to persons, both injurers and potential victims, to indulge in safer conduct, both by avoiding hazardous activities and by increasing the level of safety precautions they provide in order to meet the demands of economic efficiency.

Also using a similar argument, deterring people from committing torts in the first place, in itself leads to the development and maintenance of good standards of practice (especially amongst professionals etc. ) in order to avoid future tortious actions. Imposing strict liability for breaches of statutory duties on employers and on the manufacturers of defective products encourages the maintenance of the high standards of safety in order to avoid liability8. On the other hand, the deterrent effect of tort law may be varied and is often limited.

The vast majority of tort cases are either abandoned or settled out of court for relatively small sums9. In many instances there is no intention of deliberate harm. Also, although the supporting evidence is controversial, a common assertion is that the growth in medical negligence litigation has led to the practice of defensive medicine. It must be pointed out that it is not always the case that tort actions are concerned with recovering damages in the form of compensation. On occasion it is used whereby an individual may seek redress for injured feelings or reputation.

Claims for defamation, malicious prosecution and false imprisonment may be brought not for the purpose of obtaining compensation but to prove that the defendant acted wrongfully and thus to vindicate the plaintiff10. In conclusion, the courts whilst having little patience for trivial claims have taken a cautious approach when awarding damages against non-material harms, probably due to the difficulties in making a precise calculation of damages in many torts (for example damages for false imprisonment).

Any system that awards damages for whatever reason and to serve whatever purpose will be susceptible to criticism. The general principal of protection of certain rights and interests of the individual is agreeable to most. It is also acceptable to compensate the plaintiff at the expense of the tortfeasor if a financial loss has occurred. Society is yet to decide how best to award damages, either by making the tortfeasor directly responsible or through a possibly fairer system of insurance although with the possible consequence of encouraging the "where there's blame, there's a claim" culture.

In actual fact, the system as it is now, uses a combination of these methods to award damages. Unfortunately, nowadays the success of a tort action is primarily judged on the amount of compensation awarded and leads to the suggestion that some of the original concepts and principals of tort law have been perverted for purely monetary gain, especially in negligence and personal injury claims, rather than to compensate for the original harm and even less so to educate the wrongdoer.

Bibliography

Murphy, J. 'Street on Torts' [2003] 11th Ed, LexisNexis Butterworths, UK. Howarth, D. 'Textbook on Tort' [1995] 1st Ed, Butterworths, UK. Stanton K. M. , 'The Modern Law of Tort' [1994] Sweet & Maxwell, London. Rogers, W. V. H. 'Winfield & Jolowicz on Tort' [1998] 14th Ed, Sweet & Maxwell, London. Cooke, J. & Oughton, D. W. 'The Common Law of Obligations' [1999] 2nd Ed, Butterworths, UK.