Tort General

Overview

“Tort” is an archaic (Norman-French derived) word for a wrong. The law of torts relates to private claims between individuals or corporates for compensation caused by wrongdoing. In contrast to a claim based on a contract, it does not derive from a voluntary agreement. In contrast to claims based on restitution, it is not designed to prevent unjust enrichment. The defendant’s fault is the basis of his liability.

A tort claim may be for compensation or a court order compelling a person to do or refrain from doing a particular thing. Civil claims refer to the fact that the claim is private. The State has no role. Compensation and redress of the wrong is the purpose. Punishment is not.

An assault might both have criminal implications and civil implications. However, these are separate. The criminal case is usually pursued by the Gardai, although private prosecutions are possible for minor offences. The principal purpose is punishment, although recent legislation allows the courts to make compensation orders to victims. In a criminal case, the facts must be proved against the accused beyond a reasonable doubt.

In contrast, in a civil claim, the facts need only be proved on the “balance of probabilities”. This means that on the basis of the evidence presented, the facts and events put forward as the basis of the claim against the respondent, are more likely than not to be true.

Many aspects of the law of tort can be thought of, in terms of duties, rights and obligations. In many cases, the person committing the wrong will have a duty not to engage in a particular act or not to act carelessly. Correspondingly, the person affected will have had his right interfered with.

Fault-Based Claims

Tort claims arise from wrongs that cause harm, loss or damage to a person or property. The wrong committed by the defendant typically arises from an unintended incident. Common examples include car accidents, slipping and falling and work-related accidents.

Tort claims may arise from conscious acts and transactions. This may include deliberate acts such as assault, defamation, interference with businesses and trespass. A tort claim may arise from a state of affairs. Examples include nuisance which involves interference with another in his enjoyment of land.

Generally, physical injury or damage to property is involved. There are certain limited circumstances in which economic loss alone is compensated. Usually, there will be an element of fault on the part of the person who is held liable. This may range from slight carelessness to deliberate action.

There are some tort claims where no element of fault is required. In this case, liability is said to be strict. This may arise where dangerous goods and materials are involved.

Negligence may not be morally blameworthy. It may simply be a failure to meet an ideal and even impossible standard, judged in hindsight. It may seem to be part of a process of apportioning loss to the party who may be insured.

Compensation

The purpose of the law of torts is to compensate for wrongs. If a tort (a wrong) is proved, the claimant will generally be entitled to compensation by way of a once-off money payment. The defendant who is responsible for the tort is immediately legally liable to pay this lump sum. This could mean that the person is bankrupted by an incident in respect of which there is little or no real blame.

The general principle is that the person who has been wronged should be put in the position in which he would have been, but for the civil wrong. An attempt is made to quantify the loss in money.  In some cases, it may be easy to quantify loss or damage in money terms. In other cases, it will be more difficult to quantify the loss, for example, in the case of pain and suffering. However, the courts quantify such losses as best they can.

In contrast to a claim in tort, criminal law punishes and is preventative. In some cases, a breach of constitutional rights may not cause loss or damage or may be minimal. In these cases, the courts may grant aggravated exemplary or punitive in addition to compensation.

Protection of Property

Some aspects of tort law are concerned with protecting property rights. For example, trespass law protects against direct interference with land, goods and persons. Nuisance law protects against unreasonable interference with a person in the enjoyment of his land.

Passing off law protects the misappropriation of business goodwill. Legislation protects other forms of intellectual property such as copyrights, trademarks, software and industrial processes.

In some tort cases, in particular, those which protect property rights an injunction preventing or compelling certain action may be granted, in addition to or instead of compensation.

Issues for Businesses

Certain aspects of tort law are be commonly encountered in business. Employees’ claims may arise from workplace injuries and illnesses.  Members of the public may suffer accidents on the business premises. Its vehicles may be involved in road traffic accidents.

The business may be liable for its own negligence in the course of business. It may be liable for negligent advice. Its products may be defective and may cause physical or property damage or loss or damage suffered by its customers.

It is an important principle that a business or employer is liable for the civil wrongs committed by its employees in the course of employment. The business will be liable if the action concerned was broadly within the scope of his employment, notwithstanding that the employee was in breach of his duties as an employee.

Insurance

Most civil liability arises from events that are in the nature of the accidents. The degree of fault may be minimal. It may be incurred by an employee. It may lead to enormous liability.

Once an element of fault is determined to have occurred and accordingly liability arises, the person found liable is generally responsible in full for all consequences. The business is legally liable to pay. If it cannot pay and has no insurance, it can be liquidated and its assets can be sold in satisfaction.

Insurance is the only reasonable means by which a business can protect itself from the risk of significant claims. So-called, public liability is liability to members of the public e.g. a customer who is injured in a fall at the business premises. Product liability may occur in the course of business where there something sold caused injury or damage.

A business should have comprehensive employers and public liability for a sufficient amount. Some businesses will require wider cover for liability arising from their goods and services.

Motor insurance is mandatory. Employer’s liability, public liability and product liability is not mandatory in Ireland. Professional indemnity insurance is liable for some professional services providers.

Comprehensive insurance cover is highly desirable. Otherwise, the business runs the risk of catastrophic and ruinous liability. See our section on Insurance. A comprehensive insurance policy may be tailored to the business’ risks and requirements.

Vindicates Constitutional Rights

Tort law protects recognised rights and interests. Some of these interests are also expressly or impliedly in the Constitution.  These include personal liberty, inviolability of dwellinghouse, freedom of expression, freedom of association, property rights, rights to a good name and the right to bodily integrity. In several cases where there has been egregious conduct by State agents, significant damages have been awarded.

Over the last 50 years, the courts have taken some steps to rationalise or place the law of tort in the context of the Constitution. In some cases,  the courts have stated that if the law of tort does not at present provide adequate protection for a particular constitutional right, the law of torts may be extended to cover this right. This may have the effect that there may be a right of damages or compensation for breach of such rights, where it did not previously exist under tort law.

The general position is that only the State and State bodies are bound by the Constitution. However,  the Constitution recognises personal rights for private citizens and corresponding duties, which the State must in its laws protect. There may, in such circumstances, be a right to compensation or redress against a private person for breach of a person’s constitutional rights.

Narrower View of Constitution’s Role

There are limits to the principle that the Constitution may protect private interests by the creation of new torts.  The principle has been controversial. A narrower view is that the Constitution is limited to an obligation to provide in its laws that constitutional rights must be protected.

Some courts have been reluctant to move too far beyond the existing law of tort on the basis of Constitutional rights. Some courts have indicated that there is no general obligation to defend and vindicate the Constitutional right of citizens in all cases on pain of damages.

In some areas such as the protection of good name and reputation, the law of tort is well developed and comprehensively protects the relevant rights. There are other areas such as in relation to freedom of association, where the law of tort not as well-developed. In this latter case, it is possible that the law of tort could be extended to protect such constitutional rights.

Where a particular interest is already protected by law, the courts will not generally extend these principles beyond the existing rules. If the rights are already adequately protected, the courts are reluctant to create new types of claims or actions.