A part of Duhaime's Tort & Personal Injury Law Centre

Many legal academics shudder at the thought of providing a simple definition of the word tort.

Most simply do not even try, saying that to do so would preclude one or other scopes of the branch of common law.

However, we will throw caution to the wind ignoring herein even the preferred term of lawyers: personal injury law or what American lawyers simply call "PI".

Tort is derived from the Latin word tortus which meant wrong. In French, "tort" also means a "wrong".

Tort refers to that body of the law which will allow an injured person to obtain compensation from the person who caused the injury.

Every person is expected to conduct themselves without injuring others. A concept derived from tribal law as old as the Christian Bible; from Luke 6:31, King James Version:

"And as you would that men should do to you, do you also to them likewise."

When they do cause injury to others, either intentionally or by negligence, they can be required by a court to pay money to the injured party (damages) so that, ultimately, they will suffer the pain caused by their action.

Compensation is probably the most important social role of tort law.

Tort also serves as a deterrent by holding persons responsible for their actions and to educate the community as to what is unacceptable conduct. Another moral lesson of tort law - that wrongdoers pay for their actions - is a pinnacle of modern society and, indeed, of many religious beliefs.

Two major distinctions have to be added to the above attempt at defining tort law:

  • Tort law is the wrong place to turn for compensation for an ill-performed duty owed to you as a result of a private agreement between you and another. This latter situation would be governed under the law of contract, and not tort law, and a whole different set of rules.
  • Tort law is not the same as criminal law. A crime often leads to two very different branches of the law, one being tort law, the other being criminal law. Say I punched you in the nose. This would be a crime and punishable in court. The state would prosecute me on behalf of society and not on behalf of the victim. Any fine handed out against me as a sentence would not go to the victim but would go to the government. That same punch would also give rise to an action under tort law, where you would sue me for causing you injury and your suit would ask the court to order me to compensate you, asking for an amount which, as best as can be done, the pain and inconvenience a broken nose is worth. Any compensation the court would order me to pay would go to you.

    But crime and tort entail very different legal processes. Criminal proceedings requires proof beyond reasonable doubt whereas the tort action only requires proof based on a preponderance of evidence. A criminal conviction is by no means an automatic entitlement to compensation under tort law (although some states have criminal victims compensation laws which somewhat dilute this principle). In fact, there is an odd reluctance on the parts of judges to accept a criminal court's finding that there has been a wrongful act, an injury and a direct link between the wrongful act and the injury while considering a tort lawsuit based on the same incident. This is unfortunate and many legal experts are calling on courts to drop their resistance in this regard.

In the finest tradition of English common law (where tort law comes from), it was originally pure judge-made law. But more and more states are writing laws which limit, clarify or strengthen tort law.

For example, one Canadian province has said that every time a motor vehicle hits a pedestrian, the motor vehicle driver is presumed at fault and liable for damages.

Some states even have legislation which protects Good Samaritans such as American law which says that doctors cannot be held liable under tort for assistance provided at the scene of an accident except for "gross negligence" (Good Samaritans are the traditional orphans of tort law because tort law does virtually nothing to protect them from liability if, while trying to help, they injure their intended beneficiary).

But even for those areas where the principles of tort law are not codified in statutes but only in precedents, states have adapted, through judicial decisions, parts of tort law to suit their constituency.

So, although similar to a great degree, there are differences in points of detail between the tort law of common law states such as Australia, Canada, the United States and England.

For example, England still offers their lawyers complete immunity from tort liability for their conduct in litigation. This special professional immunity is not part of USA or Canadian tort law.

One of the benefits and peculiarities of the prevalence of English-origin tort law in the UK, the USA, Australia and Canada, is the extraordinary mobility of each other's tort case-law.

For example, an Australian case, Mercer versus Commissioner for Road Transport and Tramways is still explained in Canadian courts to urge a judge not to readily accept compliance with custom as a means to exonerate oneself from tort liability.

Many English tort judgements are still pleaded in US courts and vice-versa, as they are wherever English-origin tort law applies.

This summary does not apply to the Province of Quebec which has its own set of rules governing liability (known as "responsabilité civile" and covered under Quebec's Civil Code). It should be noted, however, that the results of most principles of common law tort can be obtained, albeit with differently name principles, under the Civil Code or Quebec jurisprudence.

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