The word tort is derived from old French term meaning ‘a wrong’. In law, a tort is a civil wrong that infringes on the legal rights of another party, causing physical or nervous shock, financial loss or property damage. Torts are a fundamental component of civil law. Before finding liability and awarding damages or restitution, a court must determine that a tort has been committed. If it establishes it then it may find the tortfeasor (the person or party that commits the tort) liable and award damages or compensation to the plaintiff (the person against who the tort was committed). The law of torts therefore plays an important role in protecting people against unreasonable interferences with their physical safety and well-being, as well as their property, reputation, and financial interests.
Most of the tort law in Australia exists in common law. In other words, they are found in judgements and precedents formed in the courts. Some torts, however, have been codified in and modified by legislation. In recent years both Federal and State governments have passed legislation that regulates civil action for various torts, such as negligence and defamation. Most Australian jurisdictions have also passed ‘limitation of actions’ legislation. These statutes outline time limitations for launching specific types of legal action, such as six years for property damage cases. If the plaintiff does not launch action in this timeframe then the legal basis for their claim is extinguished.
There are two types of torts: intentional torts and non-intentional torts. As the name suggests, an intentional tort is where the tortfeasor has acted deliberately and consciously to cause harm, suffering or loss. Some examples of intentional torts include:
Trespass to the person. The tort of ‘trespass to the person’ determines that individuals have the right to personal safety and security. It relates to assault, battery and false imprisonment. In Condi v. Basi (1985) the plaintiff had his leg broken after an illegal tackle in a soccer match; the judge ruled that the opposition player should have exercised a higher degree of care and awarded the plaintiff 4,900 pounds in damages.
Trespass to land or goods. These torts relate to unauthorised access to one’s property; and ‘trespass to goods’ relates to unauthorised use, removal or damage to one’s goods. In Coco v. The Queen (1994) police officers entered private property, misrepresenting themselves as telephone repairmen, and installed a listening device; information collected by the listening device was consequently used to obtain a criminal conviction. The plaintiff appealed to the High Court of Australia, which overturned the conviction since evidence was gathered by the trespass of the police officers.
Defamation. This tort occurs when one party says, writes or publishes comments about another party that have a negative impact on the second party’s reputation, leading to loss of professional or personal standing and earnings. In 2010 a Western Australian court found that anonymous comments made on an Internet forum by a Victorian man defamed the plaintiff; he was awarded $20,000 damages plus costs.
Nuisance. This tort describes actions that have a negative effect on a party’s life, health, safety or comfort. This may include conduct such as making excessive noise, generating offensive smells, keeping unhygienic or dangerous animals or dumping rubbish. In Sturges v. Bridgman (1879), Sturges – a doctor who had recently moved into a new house – launched legal action against Bridgman, his neighbour, who made sweets in his backyard using noisy equipment. Bridgman’s defence was that he had been doing so for several years, however the court granted Sturges’ injunction, ruling that the noise from a domestic house must be appropriate to a residential area.
Non-intentional torts are torts where harm, suffering or loss has been caused by some action or inaction by the tortfeasor – however the tortfeasor has not acted deliberately or with intent. Examples of non-intentional torts are:
Negligence. Probably the most common tort, negligence is an action or failure to act by someone who has a duty of care that causes injury, loss or damage. The previously mentioned case of Donoghue v. Stevenson (1932) established the negligence of a soft-drink manufacturer, for providing a product contaminated by a dead snail. In Miller v. Jackson (1977) a cricket club was sued for property damage caused by balls being hit into a neighbouring house each season; the club was found guilty of negligence and ordered to pay restitution.
Malpractice. In reality a specialised form of negligence pertaining to professionals, such as surgeons, doctors, lawyers and accountants. Plaintiffs usually claim that the tortfeasor failed to provide duty of care, by not taking all necessary steps and following all procedures as would be expected of a competent professional. In 2005 a Queensland tribunal ruled that a Brisbane vet, O’Grady, failed to provide appropriate treatment to a sick cat that later died. O’Grady was fined $2,000 and ordered to pay $16,000 costs.