Why Do We Need Tort Law? What Purposes Does It Serve, And Could Those Purposes Be Equally Or Better Served In Other Ways?
‘Tort Law’ is the law of wrongdoing. The basis of tort law is to enable a person who has been wronged to ask for compensation. This concept has been avid since pre-industrialisation with the invention of the ‘writs’. Though evolved into ‘Tort Law’, it cannot be forgotten that the aim in which the ‘writ’ was instated in the first place – to enforce the idea of an individual’s obligation to another. The surfacing of the concept of negligence here is key to understanding the need for tort law. Negligence, an act which falls short of what a reasonable person would do to protect another in foreseeable risk of harm, has been in many lengths criticized due to its ambiguity in definition. Nonetheless, the inherent concept still remains – it is what we as individuals owe each other.
Tort law has many active functions in society, as is any other form of law. But it should be emphasised that tort law mainly deals with correcting a civil wrong. Tort law is built upon a system where no one should be given lee way to injuring anyone; but then again so is criminal law. A distinguishable barrier however is existent in the form of which the injured is to be compensated for another’s act of wrong doing. The justifications between tort and crime are hardly direct but a lucid contrast between the two is the form in which it compensates individuals, i.e. Payable damages to those that have been wronged as opposed to criminal offences where, instead, an individual is punished. Tort law, to put simply, is needed to remind us that we need to care not just of ourselves but of others as our actions may directly or indirectly affect them whether it is now or in the future.
The existence of tort law serves, in my opinion, two main discretions in society – public and private responsibility. Tort law is advantageous to the public because the enforcement of policies and limits to the general society imposes a perception of which people are conveniently less selfish as they always have to think in the way of a ‘reasonable person’. This is later enveloped in the household as the morality of society is incurred into nurturing and influencing those at home. The consequence of being labeled is also what is condoned by individuals – a form of conventional fear that is stitched upon society – especially in our generation of taboo and encompassing media.
An example of this would be the specific case dispute between His Royal Highness Sultan of Brunei Darussalam and his brother, Prince Jefri, which was settled in the year 2000. The revision of tort law here is the fact that without the existence of tort law, this dispute would not have risen nor would it have been resolved. Privately it incurred positive change in family relationships and disputes between the royal siblings. Publicly, it allowed room for change towards practical conservatism, development of a nation and most importantly, improved governing. The aftermath is better revealed through public discipline. Knowing that a label can befall them at any moment with the existence of tort, they are less carefree and are more refined in their overt actions. Though transparency is yet to be accomplished in the country itself, they have vindicated the image of the society as a whole to the rest of world through the heavily publicised civil wrong, magnified by tort law.
However, it should still be questioned; is tort law the best form of serving these purposes? I believe that tort law has its comparative advantages but it is still imminent that other forms like criminal law and especially the European Convention of Human Rights, even though equally serving duty-specific purposes, overcomes many discrepancies of tort law.
The many drawbacks of tort law include the fact that courts have the ability to strike out any claims of which they think “no good course of action exists” which mandates the obstruction of an individual’s right to a fair trial. In this sense, tort law contradicts itself. The concept of negligence here is disputed because though the government is also deemed an individual, it is not referred to as an individual. Furthermore, the formulation of blanket immunity to government officials, though induces certainty of status to the public, contributes to the manifesting question of contradiction; why are they exempt from this potent rule?
The barrier between criminal law and tort law has always been controversial. The restoration in tort law is to incur damages whilst in crime one inflicts punishment. This announces the question of a ‘just’ society. In the case of Halford v Brookes, 1991, it is ‘just’ that the boy’s stepfather who was fully liable for the murder is ONLY made liable for compensational damages but no actual punishment? It can be seen that public damnation from exposing an individual of a rancid label after liability in civil courts as ‘punishment’, but the stigma after a criminal prosecution is more dominant than that of a civil liability label.
Moreover, since 1973 criminal courts were given the power that ordered convicted offenders to pay compensation to the victim. This furthers the perception of a dissipating barrier between the two forms of law. Nonetheless, the existence of punitive damages in tort law can balance out the order. But it is still concurrent that the compensation is higher in criminal courts and therefore, in respect, would be more satisfying to the victims. It should also be asserted that many concepts of tort law like negligence, causation and breach of duty are mirrored in criminal law. Should this then lead to the reciprocation of tort and crime as one? I believe so.
Ultimately, tort law confines more civil laden cases as opposed to crime. However, with reflecting concepts in both crime and tort, I do not, to an extent, see the weakness of comprising both into one form of law and instating a reprise of the Human Rights Act in which would be more comprehensive. However, knowing the state of the law, it is becoming rapidly obsolete and evolving, and a major reconstruction of the law would be insignificant and impractical. Hence, even though I believe that it would be preferable to have the law of torts to comprise the benefits of criminal law and Human Rights, it is still evident that the current system is still adequate and will suffice in this respect.
Learning the Law, Twelth Edition, Glanville Williams
Understanding Tort Law, Third Edition, Professor Carol Harlow
Tort Law: Key Cases ‘Facts At Your Finger Tips’, Jacqueline Martin and Chris Turner
Textbook On Tort, David Howarth
‘His Royal Highness Prince Jefri Bolkiah and Others v The State of Brunei Darussalam, Brunei Investment Agency’,  UKPC 62
‘The State of Brunei Darussalam, The Brunei Investment Agency v His Royal Highness Prince Jefri Bolkiah’,  EWCA Civ 1120
‘The Fairy Tale’s Over for the Kindom of Brunei Forget anything you’ve read about the Sultan, his spendthrift brother, and those missing billions. If you don’t, you’ll never wrap your mind around the real story…. ‘http://money.cnn.com/magazines/fortune/fortune_archive/1999/02/01/254405/index.htm
‘The European Court of Human Rights – Some Facts and Figures’ http://www.echr.coe.int/NR/rdonlyres/ACD46A0F-615A-48B9-89D6-8480AFCC29FD/0/FactsAndFiguresEN.pdf
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