This week, we take a look at the law of torts—a prominent area of legal practice that attracts a great deal of attention.
The law of torts, or simply “torts”, is an area of law that Australian law students study about in their first year of law school. It’s an area that can only be described as equal parts voyeuristic and macabre. Some cases, you’ll find—never quite leave your consciousness, even years on. I cannot say the same about Constitutional law cases.
Some tort cases have an element of slapstick. Others are like a crash disaster in slow-motion (as you read the facts). Some are tragic and heart-rending. You can often guess from the opening paragraphs how things end—always badly. Most of all, tort cases give us an insight into the human condition, through the personal stories of real people.
So what are torts?
Torts exist in the world of private law—concerning what we call “civil wrongs”. It allows courts to compensate for losses suffered by private individuals “due to the conduct of others which is regarded as socially undesirable.”
While digging around, I found a graph that gives you an idea of where Torts lives on the legal tree:
Some of the aims of tort law is to compensate for harm, discourage repeat behaviour and encourage safety, and provide some form of punishment for actions that are not necessarily criminal. In short, tort law is about sanctioning crappy behaviour that society has decided (over time) should be sanctioned. In more adult speak:
“The law of torts determines whether a loss that befalls one person should or should not be shifted to another person. Naturally, this is impossible in any literal sense in the case of personal injury or death; but some of the consequences of injury or death, such as medical expenses incurred or loss of wages or support sustained, can be made good by payment of sums of money, called ‘damages’. Damages may also be paid, for want of a better means of compensation for non-pecuniary consequences, such as pain and the effect of the injury on the sufferer’s overall enjoyment of life. In this sense the loss may be shifted from the injured person to the person who pays the damages.” —Luntz et al., Torts: Cases and Commentary (2009, 6th ed, LexisNexis Butterworths), page 12.
The historical development of tort law was around three types of trespasses—to body, goods, and land. Examples of torts include:
- Breach of statutory duty
- Assault (trespass to the person – deliberate)
- Battery (trespass to the person)
- False imprisonment (trespass to the person)
- Wrongful death
- Trespass to land
- Trespass to goods
- Conversion (taking others’ goods as your own)
- Passing off (think trademarks)
- Interference with contractual relations
When a snail made (legal) history
The notion of ‘tort’ relies on the assumption that one party owes another a reasonable duty of care and any breach of this standard can be redressed through compensation.
To understand how tort law is different from contract or criminal law, it’s worth looking at the early English case of Donoghue v Stevenson  A.C. 562.
Here are the fun facts.
On a summery August evening in 1928, Mrs Donoghue’s friend bought her an iced drink made from ice-cream and ginger beer at a shop. (How lovely.) The bottle was a dark, opaque colour. Mrs Donoghue had consumed most of the contents of the bottle before… (HORROR) she spotted a badly decomposed snail float out of the bottle into her glass. Mrs Donoghue claimed that she suffered shock and gastroenteritis afterwards. Unfortunately, as it was Mrs Donoghue’s friend (and not Mrs D herself) who purchased the drink—there was no contractual relationship between Mrs Donoghue and the manufacturer. This is what we call “privity of contract”.
The case landed in the UK House of Lords. The question? Did the manufacturer owe a legal duty to the ultimate purchaser or consumer to take reasonable care, to ensure that the drink was free from defect likely to cause injury to health?
Lord Atkin delivered the seminal judgment, drawing on the Biblical concept of “loving your neighbour” (which one can hardly imagine would be a basis for developing legal principles these days). His Honour, in expounding on what we now know as “the neighbour principle”, said:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
More narrowly, Lord Atkin identified that any manufacturer of products had a duty of care towards the ultimate consumer, knowing that an absence of reasonable care will result in an injury to the consumer’s life or property.
At this point, modern tort law (as we now know it) was born.
As you can see, tort law bypassed the fact that the plaintiff may not always have a contractual relationship with the wrongdoer. However, torts can still intersect with contract or criminal law. For example, a drunk driver who kills someone on the road would face criminal charges—and may also separately face a claim for damages brought by the deceased’s family.
Burden of proof
This brings us to the burden of proof—or what a plaintiff has to show in her/his tort case to win.
In criminal law, we all know that the prosecutor has the burden of proof. The standard in criminal cases is a lot higher, requiring proof of guilt “beyond reasonable doubt”.
In comparison, the burden of proof for torts is much lower. It requires that “on the balance of probabilities”, if not for the defendant’s wrongdoing, the plaintiff would not have sustained the loss. Of course, it’s a little bit more complex than that depending on legislation—but it reflects the general principle.
Why does this matter? Sometimes there are cases where it is too difficult to satisfy the criminal standard. For example, historical sexual abuse cases in institutions are difficult to prove using the criminal standard. This is often because of limited evidence and the passing of time. Tort law can offer another way for victims or their families to seek redress.
Public policy = Common law x Statute
Since Donoghue v Stevenson, tort law has taken a life of its own. As a common law discipline, it relies on the development of case law, which in turn reflects the spectrum of human behaviour. If aliens landed on Earth and wanted to read up on homo sapiens, I’d recommend that you keep them well-clear of tort cases.
Tort cases (at least the landmark ones) showcase the more extreme scenarios of things gone wrong involving humans. But more interestingly, tort law allows us to reflect on our standards and ethical questions—what we consider acceptable, or unacceptable in society.
In Australia, tort law is tempered by State-based legislative tweaks. This is to prevent rampant and open-ended litigation and the unlimited award of damages. Taking Victoria as an example:
- the Wrongs Act 1958 (Vic), s 28F caps the award of damages for weekly loss of earnings to 3x of the average weekly earnings of a Victorian employee—rather than what one would earn, say, as a pop star.
- the Statute of Limitations Act 1958 (Vic) was amended in 2003 to bar actions for personal injuries after 3 years (instead of 6 years). There is an even shorter timeframe for certain actions, such as defamation which must be brought within 1 year of publication.
Not a free-for-all
Importantly, something to remember is that tort law isn’t a free-for-all smorgasbord (unlike what you think happens in the USA or on Judge Judy). You have to satisfy a number of tests or thresholds before you can claim damages.
That’s the subject of next week’s blog, Brew Basics: Torts (Part 2).
- Luntz et al., Torts: Cases and Commentary (2009, 6th ed, LexisNexis Butterworths).
- James C. Plunkett, “The Historical Foundations of the Duty of Care” (2015) 41(3) Monash University Law Review 716.
- Supreme Court Library Queensland (Sir Harry Gibbs Legal Heritage Centre), “Donoghue v Stevenson  AC 562” (accessed 7 June 2020).