This article will help you understand what tort law in Australia is. Simply speaking, Australian tort law gives you the right to seek compensation for harm that another person causes because of his or her carelessness. Tort law varies worldwide and by state. In common law, tort has been present in modern day law problems such as product liability or negligent statement liability.
The infamous ‘snail in a bottle’ case of Donoghue v. Stevenson pioneered in establishing the concept of tort and negligence. In the case, the decision was made in favor of Mrs. Donoghue, the customer, because the ginger beer manufacturer must bear the duty of care in making its products for consumption.
Despite the absence of a contractual relationship, the manufacturer is liable for damages to Mrs. Donoghue as such negligence is a manifestation of a legal wrong committed against another person.
This guide will provide an overview of the fundamentals of Australian tort law that will help you understand your rights if someone’s actions may have caused you injury or damage.
What Is Tort Law?
Torts are generally created by common law. Common law is based on legal precedents established by courts of varying jurisdictions. Institutionalised opinions and interpretations from judicial authorities are utilised to create a legal parameter in determining the existence of torts.
A definitive answer to the question ‘what is tort law’ is that a tort is a legal wrong that one person or entity (the tortfeasor) commits against another person or entity and for which the usual remedy is an award of damages. Courts impose liability for torts to protect basic rights such as privacy, fundamental rights and property rights.
In short, tort law protects you from others and gives you the right to sue for damages. Torts fall into three general categories:
- Intentional torts – This can include performing surgery without a valid consent
- Negligent torts – An example of this is failure to diagnose a ruptured ectopic pregnancy.
- Strict liability torts – This can include implanting defective prosthetic hip components or using defective drugs
What Is Tort Law: Civil Wrongs v. Criminal Acts
A tort can also be classified under criminal laws. Tort cases are filed by individuals who want to recover damages for losses or injuries they suffered from the tortfeasor.
Torts can be committed by private individuals, businesses, government departments or agencies and other public authorities. Vicarious liability (vicarious liability are for torts committed by employees or agents) and personal liability are both included in tort liability.
A person generally has a right to legal remedies if he can prove on the balance of probabilities that he was a victim of a tort. But not all consequences of tortious conduct will result to damages. In some instances, the injured party may ask the court to issue an injunction to stop the tort from happening or from continuing.
What Is Tort Law: Three-Fold Purpose
To fully understand what is tort law, you need to understand its purpose. Tort law has a three-fold purpose: compensation, deterrence, and corrective justice.
The first objective of tort law is to compensate those who were injured by the harmful act of another. This may be lost income due to physical inability to come to work, medical expenses, suffering and property damage.
The legal term for this is ‘damages’. Section 3 of the Civil Liability Act 2002 (NSW), damages is defined as any form of monetary compensation but does not include:
- any payment authorised or required to be made under a State industrial instrument, or
- any payment authorised or required to be made under a superannuation scheme, or
- any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy
Second, tort law is a mode of deterring harmful or reckless conduct. For example, if you own a business, as a business owner, you will take more precaution in handling your daily transactions with the standard of diligence required by law for a particular business service. Observing the standard of diligence required will create a safer space for everyone.
Third, tort law is sort of a manifestation of corrective justice. This is because an offender’s liability against another person may be enforced through the law on torts. What happens here is that there is an acknowledgement on the part of the offender that he or she has caused harm to another and provide a motivation to change their ways for overall betterment.
What Is Tort Law: Important Concepts
Another significant aspect of understanding what is tort law is to know the definitions and objectives of the underlying concepts. These are the key concepts you must remember:
- duty of care
- breach of duty
- causation
- damages
- standard of care
For the first concept, duty of care is a legal obligation for one person to act towards another in a reasonable way to avoid harm. Under this concept, there must be a legal duty on the part of the defendant to act with due diligence for him or her to be liable if his acts caused injury to another, as in the case of Donoghue v. Stevenson.
We also have the concept of breach of duty. After determining whether a person must exercise a duty of care, check if there’s a breach of that duty. This means the defendant did not meet the expected standard of care required in the situation. For example, if a school bus driver drives recklessly, he breaches the duty of care he has to other road users and to his or her passengers as well.
Furthermore, there must be a clear connection between a claim based on torts, the breach of duty of the offender, and the harm that the victim endured. This is what we call causation.
Things to Consider
Another important concept is that of damages. If the plaintiff can prove duty, breach and causation, he becomes eligible for damages. Damages is the money given to the victim to cover losses caused by the defendant’s actions. This can be economic (medical bills, lost wages) or non-economic (pain and suffering).
Finally, the concept of standard of care is important in tort law. This means the level of care that a person must observe or exercise in a particular situation. The standard varies depending on the circumstances and the relationship between the parties involved.
Get The Justice You Deserve
If you have been injured, lost money or suffered emotional distress due to negligence, you may have a tort claim. At JB Solicitors, our tort lawyers can get you damages. We also have experience with:
- Personal injury
- Criminal law
- Contract law and contractual disputes
- Legal representation at the local or supreme court
Contact us today for a consultation and learn how we can help you move forward.