Model Answer
0 min readIntroduction
Tortious liability, a cornerstone of civil law, arises when an individual’s conduct causes harm to another, giving rise to a legal claim for compensation. It differs from criminal law in its focus on private rights and remedies. The fundamental principle underpinning tort law is that individuals owe a duty of care to others, and a breach of that duty resulting in damage is actionable. As stated in the question, this duty is generally owed to persons at large, and the remedy for its breach is typically in the form of ‘unliquidated damages’ – compensation determined by the court based on the specific harm suffered. This commentary will explore the nuances of this statement, examining the nature of the duty, the concept of breach, and the rationale behind unliquidated damages within the framework of tort law.
Understanding Tortious Liability
Tortious liability is a civil wrong that causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. Unlike contractual liability, which arises from a voluntary agreement, tortious liability arises from a duty imposed by law. This duty is not necessarily based on a prior relationship between the parties; it’s a general obligation to avoid acts that could foreseeably harm others.
The Duty Imposed by Law
The duty primarily fixed by law is a central tenet of tort law. This duty isn’t a contractual obligation but a legal obligation stemming from principles of reasonable care and conduct. The landmark case of Donoghue v Stevenson [1932] AC 562 established the ‘neighbour principle’, which defines the scope of this duty. According to this principle, one must take reasonable care to avoid acts or omissions which one reasonably foresees would be likely to injure one’s neighbour – those who are so closely and directly affected by one’s acts that one ought reasonably to have them in contemplation.
- General Duty of Care: This is a broad duty owed to the public at large. Examples include the duty of drivers to operate vehicles safely, manufacturers to produce safe products, and landowners to maintain their property in a reasonably safe condition.
- Specific Duties: These arise in particular relationships or situations, such as the duty of a doctor to a patient, a teacher to a student, or an employer to an employee. These duties are often more stringent than the general duty of care.
Breach of Duty
Breach of duty occurs when the defendant fails to meet the standard of care required by law. This is determined objectively – would a reasonable person in the defendant’s position have acted differently? Factors considered include the foreseeability of harm, the severity of the potential harm, the practicality of taking precautions, and the social utility of the defendant’s conduct. Negligence is the most common form of breach of duty.
Redressible by Unliquidated Damages
The final element is the redress for breach – unliquidated damages. Unlike liquidated damages, which are predetermined by contract, unliquidated damages are assessed by the court based on the actual harm suffered by the plaintiff. This harm can include:
- Pecuniary Damages: These are quantifiable financial losses, such as medical expenses, lost wages, and property damage.
- Non-Pecuniary Damages: These are more subjective and relate to pain, suffering, emotional distress, and loss of amenity. Determining the amount of non-pecuniary damages is often challenging and relies on judicial discretion.
- Punitive Damages: Awarded in cases of egregious misconduct, these damages are intended to punish the defendant and deter others from similar behavior.
The principle of restitutio in integrum – restoring the plaintiff to the position they were in before the tort occurred – guides the assessment of damages. However, complete restoration is often impossible, particularly in cases involving personal injury.
Exceptions and Limitations
While the general principle holds true, there are exceptions and limitations to tortious liability. These include:
- Volenti non fit injuria: ‘To a willing person, no injury is done.’ This defense applies when the plaintiff knowingly and voluntarily assumed the risk of harm.
- Inevitable Accident: An accident that could not be prevented by the exercise of reasonable care.
- Act of God: An event caused by natural forces that are unforeseeable and irresistible.
- Statutory Authority: When an act is authorized by statute, it may not give rise to tortious liability.
Conclusion
In conclusion, the statement accurately reflects the core principles of tortious liability. The duty owed is indeed primarily fixed by law, extending generally to all persons who may be foreseeably harmed by one’s actions. A breach of this duty, established through negligence or other tortious conduct, is redressible through an action for unliquidated damages, allowing courts to tailor compensation to the specific harm suffered. While exceptions exist, the fundamental aim of tort law remains to provide a remedy for wrongful harm and promote responsible conduct within society. The evolving nature of tort law, particularly in areas like product liability and environmental damage, continues to refine these principles in response to changing societal needs.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.