Tort Law in Australia
A tort could be described as a ‘wrongdoing’, where an individual suffers a wrong or an injury, and takes the matter to the courts to obtain redress or compensation. There is a distinction between a crime and a tort, in that a tort happens to be the individual and isn’t necessarily illegal, but causes that individual harm. A crime is a wong committed against the community (such as a robbery or a murder). In this way, criminal law is public law, and tort law is private law, although there is overlap in some cases.
Tort law could be thought of as a collection of rights for individuals, and the obligations of others to ensure those rights are upheld. This allows courts to provide redress or compensation to individuals who have suffered a wrongdoing, and holds wrongdoers accountable for their actions.
How is tort law practiced in Australia?
There are various types of torts. These include:
Trespass: This includes trespass to goods (interfering with someone’s property), trespass to land (interfering with someone’s land or property), and trespass to person (interfering with an individual, for example, assault and battery).
Nuisance: Private nuisance concerns the interference of someone’s enjoyment of their land. Public nuisance interferes with someone’s right to use public property.
Defamation: Where someone uses slander or libel to damage another’s reputation. This is often countered by claims that what was said or written was true and in the public interest.
Negligence: An accusation of negligence could be brought against someone who did not carry out their duty of care, and as a result, someone was harmed.
Tort law can be divided into three general categories:
Negligence torts: These concern one’s duty of care. If someone does not carry out their duty of care, and someone is harmed as a result, it could result in an accusation of negligence.
Intentional torts: These concern deliberate actions, where the accused party did something deliberate and it resulted in the plaintiff being harmed (for example, fraud and defamation).
Strict liability torts: In these cases, the accused may have carried out their appropriate duty of care so they are not guilty of wrongdoing, however they must be held accountable, as their actions caused unusually dangerous risks to society.
Tort law has two main objectives:
Compensation: To provide compensation to people who have suffered harm as the result of an action or inaction of others.
Deterrence: To deter people from taking part in harmful, risky or negligent behaviour.
How does it compare to tort law in other countries?
Given Australia’s history as part of the Commonwealth, Australian law is derived from the English common law. Common law in England developed tort law over a period of several centuries, and was then introduced into Australia when the first colony of New South Wales was established in the late 18th century.
However, there are some differences between tort law in Australia and tort law in the UK. For example, proving the intent to trespass (no proof is needed in Australia, whereas in the UK, intent is crucial). Other differences between the two countries can also arise from Australian judges taking examples from US law when forming their judgements.