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This lesson introduces the fundamental nature and purpose of tort law within the English legal system. Before examining specific torts in detail, it is essential to understand what a tort is, how tortious liability differs from criminal liability and contractual liability, the aims that tort law seeks to achieve, and the distinction between fault-based and strict liability. This lesson lays the conceptual foundation for everything that follows in the AQA A-Level Law tort module.
A tort is a civil wrong, other than a breach of contract, that causes harm or loss to another person and for which the law provides a remedy — usually in the form of damages (monetary compensation). The word "tort" derives from the Norman French word meaning "wrong."
The person who commits a tort is called the tortfeasor. The person who suffers harm is called the claimant (formerly known as the "plaintiff" before the Civil Procedure Rules 1998).
Key Definition: A tort is a civil wrong that results in the claimant suffering a loss or harm, giving rise to legal liability on the part of the tortfeasor.
Unlike crime, which is prosecuted by the state to punish wrongdoers, tort actions are brought by individuals (or organisations) seeking compensation for the harm they have suffered. Unlike contract, tort obligations arise from the general law rather than from a voluntary agreement between the parties.
Understanding tort requires understanding how it differs from, and sometimes overlaps with, other areas of law.
| Feature | Tort | Crime | Contract |
|---|---|---|---|
| Nature | Civil wrong | Offence against the state | Breach of a voluntary agreement |
| Parties | Claimant v defendant (tortfeasor) | R (Crown/State) v defendant | Party A v Party B (contracting parties) |
| Purpose | Compensation for loss | Punishment, deterrence, public protection | Enforcement of agreed obligations |
| Standard of proof | Balance of probabilities | Beyond reasonable doubt | Balance of probabilities |
| Outcome | Damages, injunctions | Imprisonment, fines, community orders | Damages, specific performance, rescission |
| Source of obligation | General law (imposed by courts) | Statute and common law | Agreement between the parties |
| Consent | Not required — duties are imposed | Not relevant | Required — duties are voluntarily assumed |
A single event can give rise to both tortious and criminal liability. For example, if a driver carelessly causes a road traffic accident that injures a pedestrian, the driver may face:
These proceedings are entirely separate. The criminal case is brought by the Crown Prosecution Service (CPS) and heard in the criminal courts. The tort claim is brought by the injured claimant in the civil courts. The outcomes are independent — a defendant could be acquitted of the criminal charge but still found liable in tort, because the standard of proof differs.
Sometimes the same set of facts can give rise to liability in both tort and contract. A surgeon who operates negligently on a private patient may be liable:
This possibility was confirmed in Henderson v Merrett Syndicates [1995], where the House of Lords held that a claimant could have concurrent claims in contract and tort.
Exam Tip: The AQA specification requires you to distinguish tort from crime and contract. A useful way to structure an answer is to identify the parties, the purpose, and the standard of proof for each.
Tort law serves several important functions within the legal system. Understanding these aims is important for evaluating whether the law achieves its objectives effectively.
The primary aim of tort law is to provide compensation to those who have suffered harm or loss as a result of another person's wrongful conduct. The purpose of damages in tort is to restore the claimant, so far as money can, to the position they would have been in had the tort not been committed. This is known as the principle of restitutio in integrum ("restoration to the original position").
Lord Blackburn stated in Livingstone v Rawyards Coal Co [1880]: "Where any injury is to be compensated by damages, in settling the sum of money to be given... you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong."
Tort law also aims to deter potential wrongdoers from engaging in harmful conduct. The threat of having to pay damages may encourage individuals and organisations to take care and avoid causing harm. This is particularly important in areas such as:
However, the deterrent effect is debated. Many tortfeasors are insured, meaning the financial burden of damages falls on the insurance company rather than the individual. This may reduce the deterrent effect.
Tort law vindicates the rights of individuals by recognising that wrongs have been committed against them and providing a legal remedy. Even where the harm is relatively minor, the act of bringing a claim and receiving a judgment in their favour can be important to claimants.
By imposing liability, tort law marks society's disapproval of certain types of conduct. This is particularly evident in cases involving aggravated damages, where the court awards additional compensation because of the manner in which the tort was committed.
Tort law establishes standards of behaviour that people are expected to meet in their dealings with others. The concept of the "reasonable person" in negligence, for example, sets a benchmark for acceptable conduct.
flowchart TD
A["Aims of Tort Law"] --> B["Compensation"]
A --> C["Deterrence"]
A --> D["Vindication of Rights"]
A --> E["Marking Disapproval"]
A --> F["Setting Standards"]
B --> G["Restore claimant to<br/>pre-tort position<br/>(restitutio in integrum)"]
C --> H["Encourage care<br/>and safe practices"]
D --> I["Recognise wrongs<br/>and provide remedies"]
E --> J["Aggravated damages<br/>reflect disapproval"]
F --> K["Reasonable person<br/>standard"]
style A fill:#1a5276,color:#fff
style B fill:#2e86c1,color:#fff
style C fill:#2e86c1,color:#fff
style D fill:#2e86c1,color:#fff
style E fill:#2e86c1,color:#fff
style F fill:#2e86c1,color:#fff
One of the most important conceptual distinctions in tort law is between fault-based liability and strict liability.
The majority of torts in English law are fault-based. This means the claimant must prove that the defendant was at fault — that they acted negligently, intentionally, or recklessly — in order to establish liability. The defendant is only liable if they fall below the standard of care expected of them.
Negligence is the paradigm fault-based tort. The claimant must prove:
If the defendant acted reasonably, they will not be liable, even if the claimant suffered harm.
Advantages of fault-based liability:
Disadvantages of fault-based liability:
Under strict liability, the defendant can be held liable without proof of fault. The claimant does not need to show that the defendant acted negligently or intentionally — only that the defendant's activity or product caused the harm.
Examples of strict liability in English tort law include:
| Example | Source | Key Features |
|---|---|---|
| Rylands v Fletcher [1868] | Common law | Liability for the escape of a dangerous thing accumulated on land for a non-natural use |
| Consumer Protection Act 1987 | Statute | Product liability — manufacturers are strictly liable for damage caused by defective products |
| Animals Act 1971 | Statute | Keepers of animals are strictly liable for damage caused by dangerous species |
| Nuclear Installations Act 1965 | Statute | Operators of nuclear installations are strictly liable for nuclear incidents |
Advantages of strict liability:
Disadvantages of strict liability:
Exam Tip: The AQA specification requires you to evaluate whether fault-based or strict liability is more appropriate. A strong answer will consider arguments on both sides and use specific examples.
Tort law has developed over centuries through the common law — that is, through judicial decisions in individual cases that establish principles and precedents. Parliament has also intervened through legislation to modify, codify, or extend tortious liability.
| Period | Development |
|---|---|
| Medieval period | Early writs of trespass provided remedies for direct, forcible wrongs (trespass to the person, land, and goods) |
| 17th–18th centuries | The action "on the case" developed to cover indirect harms — the ancestor of modern negligence |
| 19th century | Industrialisation led to a significant expansion of tort law, particularly in the areas of employers' liability and occupiers' liability |
| 1932 | Donoghue v Stevenson [1932] established the modern law of negligence with the "neighbour principle" |
| 1990 | Caparo Industries v Dickman [1990] refined the test for duty of care with the three-part test |
| 20th–21st centuries | Significant statutory intervention, including the Occupiers' Liability Acts 1957 and 1984, the Consumer Protection Act 1987, and the Law Reform (Contributory Negligence) Act 1945 |
Tort law relies heavily on judicial precedent (the doctrine of stare decisis). Decisions of higher courts bind lower courts, and the principles established in landmark cases such as Donoghue v Stevenson [1932] and Caparo Industries v Dickman [1990] continue to shape the law today.
The Supreme Court (formerly the House of Lords) can depart from its own previous decisions under the Practice Statement [1966], allowing the law to develop and adapt to changing social conditions. This flexibility is important because tort law must respond to new types of harm (such as psychiatric injury and pure economic loss) that were not contemplated by earlier generations of judges.
| Term | Definition |
|---|---|
| Tort | A civil wrong, other than breach of contract, that causes harm and for which the law provides a remedy |
| Tortfeasor | The person who commits a tort |
| Claimant | The person who brings a tort claim (formerly "plaintiff") |
| Damages | Monetary compensation awarded to a successful claimant |
| Restitutio in integrum | The principle of restoring the claimant to the position they would have been in had the tort not occurred |
| Fault-based liability | Liability that depends on proving the defendant was at fault (e.g., negligence) |
| Strict liability | Liability imposed without proof of fault (e.g., Consumer Protection Act 1987) |
| Precedent | A legal principle established by a court decision that must be followed by lower courts |
| Injunction | A court order requiring a person to do or refrain from doing a specified act |
When evaluating tort law, consider the following:
Strengths:
Weaknesses:
Exam Tip: In essay questions, always support your evaluation with specific cases and statutes. Generic statements about "fairness" or "justice" will not score highly without concrete legal examples.
This content is aligned with the AQA A-Level Law specification.