Understanding the Law
February 17, 2006
The law of tort

For the last two weeks we talked about the Law of Tort which deals with tortuous liability and we identified it as one area of Civil Law. So as to make it easier for your introduction to the topic we looked at a familiar example, the tort of nuisance, with specific emphasis on the Noise Act of 1995. This week we would broaden our view of some general aspects of tort so as to deepen our appreciation of its value.

Many writers are hesitant to give a definition of tortuous liability and would rather explain what it does without venturing to give a formal definition and I think I will take the same route. However, it may be convenient to state at this point that the word tort is a French word which means ‘wrong’. {{more}}It deals with a wide number of areas including running down actions, defamation- the making of slanderous or libelous statements as in calling someone a thief, medical negligence among others. In this modern society where there are all sorts of interaction between individuals and with companies it is not impossible for some wrongs to be committed. It is therefore appropriate for the victim to have some form of redress and many look to the law for remedy against wrongful acts or omissions.

Tort seeks primarily to provide some form of compensation to the victim in the form of damages under the Common Law. The purpose of compensation is to put the victim as much as possible, in terms of money, to the position he would have been in had the tort not been committed. This is a difficult task but the court tries to achieve a balance so that litigation will not go on forever. Hence, where through someone’s fault a person suffers losses then that person who inflicts the wrong would be liable in law. The law aims ultimately to deter persons from committing wrongs against others. It must be noted, however, that not all wrongs are actionable. For example, if a new hairdresser sets up a salon immediately opposite another, the owner cannot sue the other in tort for losses sustained.

Tort law goes back in history where because of the dependence on land for a livelihood it became necessary to provide some protection to the victim who suffered from the wrongs of others. It was used especially to prevent trespass to land and nuisance. It became necessary to extend some form of redress where it was perceived that there was a legal duty to an individual and especially where there was a breach of that legal duty. This is where the tort of negligence serves.

Some matters are covered by tort as well as criminal law, for example, assault and battery. The defendant could be liable to compensate the victim in tort and be punished for his crime. Both slander and libel may be dealt with in criminal and tort law.

Tort and contract law differ in significant ways. Whereas the basis of contract law is the rights and duties which the parties would have agreed upon in the contract, tort is dependent on the rights and duties set by the law. While tort tries to compensate for wrongs, contract provides remedies if the contract is broken.

Finally it must be noted that tort matters are very expensive and the costs could be very significant to put through a court of law. In addition, the claimant might not be able to reclaim all his losses. He may very well find that he has sued a “man of straw,” that is someone who has no money or assets.