- Contributory negligence
- Voluntary assumption of risk
- The standard of care
What is tort law?
According to Wikipedia, tort law is a common law that protects people from the actions of others. A tort is a wrongful act against another person. For this reason, if a person’s wrongdoing affects another person, the wronged party can claim for compensation under the law of tort in court.
Is a tort liability a crime?
No, a tort is not a crime. While crimes may be considered as torts, the cause of legal action in tort law is not due to criminal actions but negligence.
To understand the law of tort, one has to understand different concepts as discussed below:
In tort law, damages are compensations that the defendant pays for injuries or losses caused. Damages are classified into compensatory and punitive damages3. The court awards damages to the plaintiff only if the actions of the defendant caused injuries or losses. In this case, the plaintiff must prove the injuries through proximate cause and expert testimony. In the proximate cause, the law of tort argues that if the defendant did not foresee that their action might cause harm to someone, then they have no liability3. Compensatory damages are those compensations that are made because of someone’s breach of duty such as negligence. Lastly, general damages are compensated for non-monetary loss such as pain or suffering.
Contributory negligence is a defense in tort on issues related to negligence. In contributory negligence, the court cannot order the defendant to pay damages to an injured party. For example, if an electric fence that had clear warning signs electrocutes a person, the defendant cannot award damages because they contributed to the incident. Another instance of contributory incidence is if a person jumps off a moving car without the driver’s instructions and breaks a bone. The court cannot hold the driver responsible because the person knew that jumping was risky. The concept of contributory negligence began in the late 19th century during the case of Butterfield v Forrester. Interestingly, the defendant must prove that the plaintiff suffered because of their negligence2. During court proceedings, the defendant may use a comparative negligence as a partial defense to reduce the amount of damages that the claimant may ask for.
Voluntary assumption of risk
In a voluntary assumption of risk, the law of tort argues that a person who knows of a risk and puts himself or herself in a position where an injury might happen may not recover the damages. Also known as Volenti non fit injuria, it can be used as a defense, and if proved, the plaintiff will not recover anything. During a case of Reeves v Commissioner of police, the defendant argued that “the choice made must be free or unconstrained.”
In voluntary assumption of risk, there are key elements knowledge and voluntary. Under knowledge, tort law indicates that the defendant must know the risks and the plaintiff must equally appreciate the extent and nature of the risk. Voluntary means that that the decision must be entirely voluntary and not due to circumstances. Cases, where plaintiffs may be affected by circumstance, include if the plaintiff is a child or has little time to consider.
The standard of care
According to the Legal information institute, the standard of care is the degree of care that a person should exercise to avoid damages. If an individual does not achieve these standards, then they are liable for negligence. However, whether or not a person has breached standards of care is judged in the terms of a reasonable person. In some industry, standards of care are different from those of other industries.
- Bohlen, Francis H. “Voluntary Assumption of Risk.” L. Rev.20 (1906): 91.
- Bajada, Eucharist. “Contributory negligence in tort law: a comparative review in the light of the process of European harmonisation.” Master’s thesis, University of Malta, 2011.
- Dobbs, Dan B. The law of torts. Vol. 2. West Group, 2001.