Tort Law

Dr. Ahmed Mansour

Tort law consists of a body of rules relating to private civil wrongs. The word tort is derived
from Latin tortum, which means “crooked or wrong.” Tort law claims are prosecuted by the
injured party. Hence, these claims are considered private. Tort law identifies what these
wrongs are and provides remedies to an injured victim of such wrongs.

The range of interests protected by tort law is wide and varied and includes protection of
bodily integrity, psychiatric well-being, economic interests, property interests, reputation,
privacy and commercial interests.

Where a tort has proven to have occurred, the court may award remedies to the wronged
party. Such remedies may consist of a financial award in damages, an injunction prohibiting
the wrongful beha- viour or some other specific remedy. Wrongful behaviour, otherwise
known as liability, varies depend- ing on the rules of the particular tort. For example, in
negligence the appropriate standard is fault liability. Fault is measured objectively i.e. did
the defendant fail to take the care expected of the hypothetical reasonable man acting in
similar circumstances?

Liability may also be strict i.e. imposed in the absence of fault. Thus, regardless of whether
the defendant was to “blame” in the traditional sense, liability will attach. For example, the
Liability for Defective Products Act 1991 provides that the manufacturer of a defective
product is strictly liable to the consumer for injuries caused by the product.

HE HISTORICAL ORIGINS OF TORT LAW

Blackstone’s conception of private wrongs was domi- nated by intentional torts derived from
the Aristotelian conception of justice which was based on the notion that the purpose of tort
law was to correct injustice between private parties and the role of judges was merely to act
“as disinterested referees”2 in settling these disputes.

Tort law, based on the Blackstonian notion of private wrongs, was not best placed to handle
the claims which were increasingly coming before the courts. Consequently, it developed
from a system which essentially provided a lawful avenue for bloodless revenge – dealing
with what in the main were intentional wrongs – to one which was now presented with issues
of wider societal concern relating to how best to deal with what Calabresi famously referred
to as “the costs of accidents.”5

THE FUNCTIONS OF TORT LAW

1. Compensation & Vindication

The primary purpose of tort law is to compensate the injured party and to vindicate

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 his or her rights. Tort law provides that the defendant must pay financial
compensation to the plaintiff where he or she has committed a tort and thereby
caused a recognisable form of harm to the plaintiff. The award of such compensation
is designed to put the plaintiff back into the position he or she was in before the
injury caused by the defendant occurred. This may not always be possible. If the
plaintiff is paralysed by the defendant’s negligence, then no amount of money is
going to give back to the plaintiff what he or she has lost. But it will provide some
solace. The award of damages also sends out a signal to the rest of society that the
plaintiff’s rights have been vindicated. The award of damage tells the world that the
plaintiff’s right to be respected has been infringed. Such awards may be particularly
important where the plaintiff has not suffered actual harm e.g. the tort of assault in
trespass to the person.

2- Corrective Justice and Distributive Justice

From a morality based point of view, theorists argue that the true purpose of tort law
is to do cor- rective justice. This theory is associated with the work of Aristotle and
essentially provides that where the defendant wrongs the plaintiff he or she has
disturbed the equilibrium in the relationship between the two parties. For example, if
the negligent driver hits the pedestrian and thereby breaks his or her legs, the
relationship between the two has been disturbed. The driver has “taken away” from
the pedestrian by injuring him or her. Tort law allows the plaintiff to “take back” from
the driver through a negligence claim and award of damages. In this way the
relationship between the parties is restored. This interpretation of the function of tort
law is very individualistic, it simply views the question from the point of view of the
plaintiff and defendant only. It has no regard for the consequences of the particular
case for the rest of society.

3. Deterrence
Another claimed function of tort law is that it deters wrongful behaviour. Economic analysis
of law supports the notion that tort law deters future wrongful behaviour through the award
of damages. According to this theory, individuals are rational actors and will make what are
essentially cost effec- tive decisions. They will refrain from risky behaviour on the basis that
should the risk materialise into harm they will be rendered liable in tort law.