Fault as a basis of liability

Abstract

The conceptual basis of tort law The aim of this Part is to explain the main features of tort law as a system for compensating for personal injuries and death, and to examine its main theoretical defects as a compensation mechanism. We will focus on tort law because most claims for damages for personal injuries and death are ‘made in’ tort; although occasionally such a claim may be ‘made in’ contract or based on some statutory cause of action. The boundaries of a legal subject are not set by divine prescript but by the custom of lawyers. Tort law as a separate legal subject is largely a product of the systematizing activities of academic lawyers in the nineteenth century. This body of law deals with a variety of social and economic problems that may be classified in a number of different ways, for instance, by looking at the interest of the person who complains of some injury: are they complaining about deprivation of liberty; injury to their person or feelings; damage to property, or the invasion of land; damage to reputation or invasion of privacy; injury to relations between members of a family; damage to trade or business? Alternatively, problems may be looked at in terms of the cause of the injury: who caused it; was it caused intentionally, maliciously, negligently or without ‘fault’ on the part of anyone; did the injured person play a part in causing the injuries? A third way of classifying problems is according to the relationship between the claimant and the defendant.