Tort is a civil injury but all civil injuries are not a tort. Discuss

Introduction

The statement which suggests that “Tort is a civil injury but all civil injuries are not a tort” could confuse lots of people and many might also choose to differ. But if we carefully research on the area of Tort and civil injuries then we can find the validity of the statement. In order to that, we must first know what tort is and also its characteristics. Then we should compare it with what we know of civil injuries. By using real life examples of cases we can also bring out vital points regarding tort and its purpose. Using the connection between tort and civil injuries, the statement can be defined as valid or not.

Under the study of law there are different areas such as property law, contract law and constitutional law. All of these areas are clearly defined with proper course of action. It is easier for anyone to identify and understand these areas of law unlike the area of tort law. It’s a little complicated area of law which is still difficult to be defined properly. A lot of it is based on situation that can only be identified in real life cases. Next part tries to define a general idea of what Tort is.

 Defining Tort

A branch of civil law which is based on the claim that defendant has caused injury or loss to the claimant by breaking an already imposed obligation by general law is known as Tort. In order to get the proper knowledge of what tort is, it’s important to know what count as injury or loss and what sort of obligation can be imposed by law. People who have suffered can be compensated by using tort law. Therefore tort is involved in a legal obligation between one person to another i.e. the person consists of companies, corporation and other types of legal entities.

If we compare this law with other sections of law such as criminal law and contract law, we notice some major differences. Criminal law involves breach of duties just like tort but this breach is enforced by or acted upon by the state. Whereas contract law which is law based on agreements and the obligation that arises are undertaken willingly and also with intention.

In order to understand the implication of tort, such real life cases are illustrated below.

Donoghue v Stevenson [1932] UKHL 100 (26 May 1932)

Back in 1932, in a café two ladies were having a drink of ginger beer in opaque bottle and while drinks were being poured into the glasses, a decomposing snail was been found. Instead of taking action on the shop owner from whom the lady purchased the bottle from, she decided to sue the manufacturer of the drink. However the manufacturer had an objection to the lawsuit, which stated that even if the claims that the lady made were true still there was no legal obligation between them. Since the manufacturer and customer had no direct connection with the customer as they sold their product to the owner of the shop. The objection was to be considered as successful or not was to be decided by court. During the hearing, when court addressed the issue there was this assumption that private individuals had duties that they owe to each other and during their day to day business they should conduct themselves in such a way that it does not damage or injure other people. After the principles were being addressed, the parties settled the issue out of court and no witnesses were being called. It is important to understand that damages that people face are part of everyday living, for instance, there is recession and you are incurring loss. In such cases you cannot sue anyone for it. The central point of law of tort is drawing a line which divides the types of losses that someone has to deal it and those types of losses for which someone can hold someone responsible.

Characteristics & Purpose

Some of the key characteristics of tort are listed below:

• In case of a wrongful action that has to be considered as a tort, it’s vital that the consequences of injury that is sustained can be cured by monetary damages and also additional remedy if required.
• Tort arises in situation that is largely been regulated by the state or under situation where someone either know or should know what is expected of them.
• Rules and principles that constitute the legal system under which any action can be taken should already be available to the person who has charged with legal duty.
• Imposition of duties towards people generally.
• Party can seek the assistance of the court in ruling out a future irreparable injury.

It is important to know and understand what the purpose of tort is. One purpose of tort is that it can help in enforcing a standard of good behavior. This helps by making people less careless towards their action under different situation. Another and most vital purpose of tort is that unlike other body of laws of civil wrongs, this focuses on the compensation of individuals in case of breach of interest of someone else.

“The study of the law of torts is therefore a study of the extent to which the law will shift the losses sustained in modern society from the person affected to the shoulders of him.” [1]

Principles of tort        

The most fundamental principle of tort law is that when a defendant’s conduct is socially unreasonable then it results in a liability. Thus the decision to what is unreasonable and what is not is decided in advance but in other instances for which court or the state hasn’t consider the occurrence in advance, then those are decided weighing certain countervailing issues.  They are:

1)      In terms of times and money what is the cost for defendant to act differently.

2)      Who is able to bear the loss mostly?

3)      Through its action or through covering insurance who is able to protect against loss the most?

4)      The value of the activity socially that caused the injury.

5)      The social value of the interest that has been breached.

 Civil injury

If we have to define civil injury then we will define it by saying it is any damage that is done to property or person and which consists by involvement of breach of contract, negligence or even breach of duty. In order to know what civil injury is all about, we must first know what consisting elements means.

Firstly, breach of contract taken place when two individual who have contracts between them and one or more of the terms and conditions that are laid out in that contract are broken. Therefore such cases results in failure to follow the terms in the agreement by one party and by doing it infringing the contract between them. At times, this also occurs when the work of one party is regarded as defective or one party is informing another party that the work will be done as stated in the agreement. Now what are the damages that results after breach of contract. Mostly the damages are usually remuneration which will reflect the loss. For example, if an employer dismissed an employee unfairly then the employee could claim damages for loss of earning under breach of contract.[2] Therefore when a dispute occurs between two parties, judge will need to decide whether or not a legally binding contract is in existence or not and it has been breached or not. In case of a verbal contract, judge will clarify for reviewing the terms and condition and what were the actual actions that took place. Another common breach of contract is when an individual quits the jobs without informing the employer and even working for competitor when it’s clearly stated in the terms or condition that he is not allowed to. When party breaches a contract, there are several remedies that are available and it also depends on the nature and the extent to which breach is being done. In case of a liquidated damage, the amount of damage are fixed and therefore the fixed amount are payable to the party who has claimed it. Whereas in case of unliquidated damages when actual loss is not proven, losses are calculated by three methods such as loss of bargain, paying reliance loss and restitution.

Civil injuries also consists of act of negligence which is also known as civil wrong. An act such as this is a result of an individual’s failure to commit to a level of carefulness to which it is to be required. In case of negligence, situation is considered to be as such as that one person’s duty owed to another person. So there is a breach of duty whenever there is negligence. In order to successfully claim negligence, it is important for the claimant to prove that there was a duty that was owed to them by the defendant.

An important element of civil injury which states that when one person or company has a duty of care toward another person or company but fails to live up to standard is a case of breach of duty. In order not to breach a duty, a defendant should generally must meet the standard of being a “reasonable man” as has been stated by Baron Alderson in Blyth v Birmingham Waterworks (1856) 11 Exch 781. A reasonable person can be defined as ‘the man on the Clapham omnibus‘ as Greer LJ explains in Hall v Brooklands Auto-Racing Club (1933) 1 KB 205.[3] This standard is an objective based on average person, whom should not regarded as flawless rather be ordinarily be careful and prudent. Therefore in usual cases in order to establish that there is a duty of care, the claimant must as a result prove that the claimant hasn’t done what a reasonable person would do. If he fails then there is a breach of duty.

Now if we compare both the law of tort and civil injury, we see some similarities. Negligence and breach of duty are both an important element of tort and civil injury. Both the major difference between the two is that no such contractual agreement needs to exist in case of a tort while a civil injury consists of a breach of contract. The key difference between a tort and contract arises in the case of consent. In case of contract, it is created as the product of two consenting parties whereas tort needs no consent and is generally issued by one party against another. The purpose of tort and a contract is quite different as well. A tort arises in a penalization situation whereas contracts are drawn up in positive or otherwise creative circumstances. In case of tort, an individual or a company looks to receive compensation from the party deemed liable or responsible for causing damage. The purpose of contract is to bind two parties in a legal agreement. Even though both are backed by strength of law, tort has various degrees of it such as negligent to intentional whereas contract has special provision that functions as a sole attempt to redeem remedy in case of a breach. For tort, damages and compensation are usually agreed through negotiation or set by court order. In case there is a breach of contract, the penalties are already laid out in the actual contract which can also be negotiated by judge. Degree of negligence or maliciousness is the important aspect for both tort and contract by which awards can be given.

So, we see the differences between tort and contract. Thus breach of contract is part of civil injury and so civil injury is not always tort. Following cases shows such difference.

Case Example

Stewart Hill and another v Stewart Milne Group, [2011] CSIH 50

Inner house case which constituted unenforceable penalty if there is a contractual clause.

“The clause in question was contained in an agreement between Stewart Milne Group, Brett Limited and Stewart and Robert Hill which related to the development of two sites in Wishaw.  Basically, the agreement provided that Stewart Milne and Brett would install sewerage and surface water drainage systems at the site they were developing which the Hills would be able to connect their site to the systems at no cost. If the drainage systems were not completed by the 28 March 2008 the Hills were entitled to receive payment from Brett and Stewart Milne of a penalty of £5,000 per calendar month until the systems were completed.” [4]

After this, the works was not completed by 28 March 2008 and payments were made to the hills until December 2008. But it was stopped as court action was being raised by Hills.

The clause imposed a liability as temporary sheriff stated that a payment for it is needed to be given. Thus this was a case of breach of contract. The parties had to seek to show that the clause was a penalty to raise the issue and by doing that the party could rely on it to show how the clause is implied showed that a genuine pre-estimate of losses and damage was caused by breach. As Stewart Milne and Brett raised the issue, Hill had them in a situation where they had to show that the provision was a genuine pre-estimate of their loss. However, Hills failed to show the provision but still there was an issue regarding the failure of Stewart and Brett to complete the system by 28 March.  They would have been able to complete their site, sell it and realize the return, they could not succeed. An Extra Division of the Inner House on the other hand had agreed Hill’s submission to the effect that it was for Stewart Milne and Brett as the parties claiming that the provision was an unenforceable penalty clause to show that this was the case and they had failed to do so. It appeared from the sheriff principal’s decision that he considered that it was not only for the Hills to show that the provision was a genuine pre-estimate of damages but also that the supposed breach of contract had given risen to a loss of the sort that the pre-estimate had been directed at quantifying. As a result, Inner house therefore allowed the appeal against the sheriff’s principal decision.

 From the above case, we can derive how civil injury can be a result of breach of contract. Under no law can this case be termed as being part of tort. Tort cases do not involve contractual binding as shown in the following tort case.

 Caparo v Dickman (1990) HL

Dickman were auditors of company accounts and Caparo bought shares and then discovered that the accounts were not showing the amount of loss company has made. Caparo alleged that in negligence of duty was owed to them.

Approving a dictum of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985), that the law should preferably develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable “considerations which ought to negative or limit the scope of the duty or the class of person to whom it is owed”.[5]

Auditors won the case as duty of care were not been established. But if there was any contractual relationship in this case between Caparo and Dickman auditors then there would have been a different judgment. In that case it would be breach of contract along with duty of care, which can be termed as civil injury but not tort.

 Conclusion

Tort and civil injury are similar in lots of ways and there are cases were claimer has been offered the choice of choosing tort or contractual as basis of the claimant. So both can coexist under the law but it should be clearly stated whether an agreement or contract exist anywhere among the parties. Thus we can say “tort is a civil injury but all civil injuries are not a tort”.

Bibliography

    

1. Strong, S., & Williams, L. (17). 1. Strong & Williams: Complete Tort Law: Text, Cases, and Materials (pp. 1-28). London: Oxford University Press.

1. In Law, What Is the Difference Between Tort And Contract?. (n.d.).wiseGEEK: clear answers for common questions. Retrieved March 24, 2012, from http://www.wisegeek.com/in-law-what-is-the-difference-between-tort-and-contract.htm

1. Negligence Act: Law & Negligence Solicitors / Lawyers in UK / London. (n.d.). Contact Law UK | Solicitors UK | Lawyers UK. Retrieved March 24, 2012, from http://www.contactlaw.co.uk/act-of-negligence.html

1. Breach of Contract – Contracts And Agreements. (n.d.). Understanding Contracts and Agreements at Contracts And Agreements (UK). Retrieved March 24, 2012, from http://www.contractsandagreements.co.uk/breach-of-contract.html

1. Breach of duty in English law – Wikipedia, the free encyclopedia. (n.d.). Wikipedia, the free encyclopedia. Retrieved March 24, 2012, from http://en.wikipedia.org/wiki/Breach_of_duty