What is a tort?
The word tort comes from an old French word for "wrong". A tort is a civil wrong: it breaks a duty the law puts on everyone, not a duty from a contract.
- Tort vs crime: a crime is a wrong against society; the state prosecutes and the aim is punishment. A tort is a wrong against a person; the victim sues and the aim is to repair the harm.
- Tort vs contract: in contract, the duty comes from an agreement. In tort, the duty exists without any agreement.
What does being liable mean?
Being liable means the law makes you answer for harm: you must pay or put things right. In most legal systems liability needs a wrongful act or fault, damage, and a causal link between them. Some liability is strict: no fault needs to be proved.
Aims of tort law
Compensate the victim, deter careless behaviour, and spread losses fairly (often through insurance).
Negligence: the four links
1. Duty of care
You owe a duty to people you can reasonably foresee could be hurt by your actions: your neighbours in law (an idea from a famous 1932 case about a snail in a bottle of ginger beer). In new situations courts ask: was harm foreseeable? Was there proximity (a close enough relationship)? Is it fair, just and reasonable to impose a duty?
2. Breach of duty
The defendant fell below the standard of a reasonable person. Courts weigh: how likely the harm was, how serious it could be, the cost of taking precautions, and the social value of the activity. Professionals are judged against a reasonable member of their profession; children against a reasonable child of the same age.
3. Causation
Factual causation: the "but for" test: but for the defendant's act, would the harm have happened? Legal causation: the harm must not be too remote (its type must be reasonably foreseeable), and no new independent act must break the chain.
4. Damage
There must be real harm: injury, damage to property, or financial loss linked to them.
Occupiers' liability
An occupier is whoever controls premises: a homeowner, shop, school or business. Premises include buildings, land and even ladders or scaffolding.
- Visitors (people invited or allowed in) are owed a duty to take reasonable care that they are reasonably safe.
- Children: occupiers must expect children to be less careful than adults and guard against tempting dangers.
- Skilled workers (like an electrician) are expected to guard against risks of their own trade.
- Trespassers are owed a lower duty: only where the occupier knows of a danger and that someone may come near it, and it is reasonable to protect them.
Clear warnings can discharge the duty if they make the visitor reasonably safe.
Nuisance and dangerous escapes
Private nuisance
An unreasonable interference with someone's use or enjoyment of their land: smoke, smells, noise, roots, vibration. Courts look at the character of the area (locality), how long and how often it happens, whether the claimant is unusually sensitive, and whether there was malice. The claimant must have an interest in the land (owner or tenant).
Defences include statutory authority (an Act allowed it) and, in some systems, prescription (it has gone on openly for 20 years). "You came to the nuisance" is not usually a defence.
Public nuisance
Harm to the public as a group, e.g. blocking a road. Usually a crime; an individual can sue only if they suffered special damage.
Dangerous escapes (strict liability)
If someone brings onto land something likely to cause harm if it escapes (such as a large mass of water), uses land in a non-natural way, and it escapes and causes foreseeable damage to a neighbour, they can be liable even without fault. This rule comes from a 19th-century case about a burst reservoir flooding a mine.
Vicarious liability
Vicarious means "in place of another". An employer is liable for torts done by its employees when:
- The person is an employee (or in a relationship very like employment), not an independent contractor. Courts look at control, who provides tools, who takes the financial risk and whether the person is part of the business.
- The tort was done in the course of employment: there is a close connection between the job and the wrong, even if the employee did it badly or against orders.
Why? The employer gains from the work, can insure, and is in the best position to train and supervise. The employee is still liable too.
Defences and remedies
Defences
- Contributory negligence: the claimant was partly to blame (e.g. not wearing a seat belt). Damages are cut by their share: damages = loss × (100% − claimant's share).
- Consent (volenti non fit injuria): the claimant freely and knowingly accepted the risk. A full defence, but courts apply it strictly.
- Illegality: the claimant was injured while doing a serious crime.
Remedies
- Damages: money to put the claimant in the position they would have been in if the tort had not happened. Special damages are exact amounts (bills, lost wages so far); general damages cover pain, suffering and future losses.
- Injunction: a court order to stop doing something (often used in nuisance).
Try it: be the judge
Make up a short story: someone leaves a bicycle on the stairs and a neighbour trips. Write the four links: Who owed a duty? How was it breached? Would the fall have happened but for the bicycle? What was the damage? Then decide whether the neighbour was partly to blame (were they looking at a phone?). Check your answer in the last step of the 3D by switching links and setting the blame percentage.
Key formulas and definitions
- Negligence = Duty + Breach + Causation + Damage (all four needed)
- Duty in new situations: foreseeability + proximity + fair, just and reasonable
- Factual causation: "but for" test; legal causation: not too remote, chain not broken
- Damages with contributory negligence = loss × (100% − claimant's share of blame)
- Vicarious liability = employee + tort in the course of employment (close connection)
- Liability in general = wrongful act or fault + damage + causal link (strict liability: no fault needed)
Worked examples
1. A driver is texting and hits a cyclist, who breaks a leg. Apply the four links.
Duty: road users owe each other a duty. Breach: a reasonable driver would not text. Causation: but for the texting, the crash would not have happened, and injury is a foreseeable type of harm. Damage: broken leg. Negligence is proved.
2. The cyclist's loss is ₹2 00 000 and she was 25% to blame (riding at night without lights). How much will she get?
₹2 00 000 × (100% − 25%) = ₹2 00 000 × 0.75 = ₹1 50 000.
3. A doctor gives a treatment that a responsible group of doctors would also accept, but the patient is harmed. Is this a breach?
Usually not. Professionals are judged against a reasonable, competent member of their profession. If a responsible body of doctors would act the same way, there is no breach.
4. A café's playground has a broken swing. A 6-year-old visitor is hurt. What tort, and what matters?
Occupiers' liability. The child is a visitor; occupiers must expect children to be less careful, so the café should have repaired or closed the swing.
5. A bakery's ovens run all night next to houses in a quiet street. Neighbours cannot sleep. Which tort and remedy?
Private nuisance (unreasonable, repeated noise in a residential area). The neighbours may get an injunction to limit night-time work, and damages.
6. A delivery rider employed by a company knocks down a pedestrian while delivering. Who can be sued?
The rider (for negligence) and the company (vicarious liability), because he is an employee acting in the course of employment.
Common mistakes
- Mixing up tort and crime. Tort is a civil claim by the victim for compensation; crime is prosecuted by the state for punishment.
- Forgetting causation. Even a careless act gives no claim if the harm would have happened anyway.
- Treating independent contractors like employees. Vicarious liability usually covers employees, not contractors.
- Thinking contributory negligence defeats the whole claim. It only reduces damages by the claimant's share.