We hear quite a great deal about criminal law. The proceedings are well publicized in the local newspapers when cases are reported either from the Magistrate’s Court, High Court or the Court of Appeal. Not so much is heard about tort matters that are dealt with in the civil court. While criminal matters are between the defendant and the Chief of Police or the Queen, tort matters are generally between private individuals. Tort law covers many different claims in diverse situations, as when someone is injured in a road accident or a person trespasses on land of another, or where someone creates a nuisance that is harmful to another. In general, there is some sort of breach when someone acts against another. Think about the world without this recourse to settle matters in a court of law. People would be careless and would satisfy their own needs without consideration for others. It would be a world out of order. The roads would be difficult, with individuals riding roughshod over one another. Tort laws tend to keep people in line. They know that they could be sued for not complying with the law. In other words, it promotes orderly behaviour and deterrence, as opposed to disorderly behaviour to some extent.
Tort laws require an element of fault on the part of the person who committed the tort or in some cases it is necessary only to show that the tort occurred. The victim is allowed certain remedies. For example, the victim can claim money in the form of compensation known as damages for the harm done. The wrongdoer could be prosecuted in a criminal court for careless driving and sued by the victim for the injuries in tort. The former is between the wrongdoer and the Crown/Queen, while the latter would be between the victim and the wrongdoer, known as the tortfeasor.
Fault is an important requirement for a tort action to succeed. It must be shown that an act or omission caused damage for which the defendant is responsible. It therefore, becomes necessary to prove that the defendant had a particular state of mind. The state of mind relevant includes malice, intention and negligence. They are however not relevant in matters of strict liability cases. Strict liability is where a person commits an act forbidden by statute where it is not necessary to prove state of mind at the time of the tort.
Malice is a state of mind that causes someone to act maliciously or with motive. It is generally irrelevant in tort law, but is especially relevant in cases of defamation, and nuisance. Certain defenses might not be available if the defendant acted maliciously. When an act is motivated by malice, a fairly ordinary act could be made to be unreasonable. If the tortfeasor acts with malice it could cause the amount in calculation for damages to be higher than where there is no malice.
Intention is where a person has the mind set to do something wrong and which actually is wrong. The tort of trespass for example requires the state of mind of intention.
Negligence is a significant element of state of mind in tort law. In simple terms, it is about carelessness. An individual might not have gone out intending to do harm or cause damage, but he does not take the care to make sure that it does not happen. He must be careful in his action and must compensate the victim for his careless act.
Ada Johnson is a solicitor and barrister-at-law. E-mail address is: [email protected]