Chapter 1. Introduction

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DEFINITION

A tort may be dened broadly as a civil wrong involving a breach of duty xed by

the law, such duty being owed to persons generally and its breach being red ressable

primarily by an action for damages.

The essential aim of the law of torts is to compensate persons harmed by the

wrongful conduct of others, and the substantive law of torts contains those princi-

ples which have been developed to determine when the law will and when it will

not grant redress for damage suffered. Such damage may take any of several differ-

ent forms, such as physical injury to persons; physical damage to property; injury to

reputation; and damage to economic interests.

Monetary damages is the usual remedy for a tort. The other important rem-

edy is the injunction, which is a court order forbidding the defendant from doing

or continuing to do a wrongful act. Whether the claimant is claiming damages or

an injunction, he must rst prove that the defendant has committed a recognised

tort, for the law of torts does not cover every type of harm caused by one person to

another. The mere fact that D’s act has caused harm to C does not in itself give C a

right to sue D; C must go further and show that D’s act was of a type which the law

regards as tortious.

TORT DISTINGUISHED FROM OTHER LEGAL CONCEPTS

Tort and crime

The main purpose of t he criminal law is to protect the interest of the public at large

by punishing those found guilty of crimes – generally by means of imprisonment

or nes, and it is those types of conduct which are most detrimental to society

and to the public welfare that are treated as criminal. A conviction for a crime is

obtained by means of a criminal prosecution, which is usually instituted by the

state through the agency of the police or at the discretion of the Director of Public

Prosecutions. A tort, on the other hand, is a purely civil wrong which g ives rise to

civil proceedings, the purpose of such proceedings being primarily not to pun-

ish wrongdoers for the protection of the public at large, but to give the individual

claimant compensation for the damage which he has suffered as a result of the

defendant’s wrongful conduct.

Although it is not disputed that the basic function of the law of torts is to com-

pensate the claimant, there is a s chool of thought which points to what may be called

the ‘deterrent’ aspect of tort law. The essence of this v iew is that the possibility of lia-

bility in tort may have the effect of inducing persons to modi fy their behaviour so as

to avoid harming others; it is suggested that tort law ‘teaches people that wrongful

acts do not pay and, as a consequence, people will act more carefully’.1 Protagonists

1 McKendrick, LLB Tort Textbook, 5th edn, 1993, Sydney: HLT, p 2.

CHAPTER 1

INTRODUCTION

DOI: 10.4 324/97813510 65108-1

10.4324/97813 5106 5108 -1