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Skip to 0 minutes and 4 seconds MELISSA CASTAN: So torts law regulates behavior between people even when they don’t have an agreement. When you’re walking down the street, when you’re driving your car, things can happen and those things might happen but they’re irrespective of any relationship you have explicitly with another person. If you trip over in the gutter, if somebody rides their bike and rides into you, there’s no contract relationship there. So what is the relationship that governs those responsibilities between people? We call that relationship “torts.” Torts law has quite a bit of economic philosophy and theory underpinning it but underneath that, what we say is that torts involves a readjustment of personal and public risk and loss.

Skip to 0 minutes and 50 seconds And it’s not always fair that all the loss lands on you if you are in a particular accident or somebody did something to you. So we use torts law when we need to readjust the risk-loss relationship. So compensation is a key feature of torts law and it aims to put people back in the position that they would have been if the loss hadn’t occurred.

Skip to 1 minute and 15 seconds NICOLE MOLLARD: Torts is one of the areas of civil law and it protects a wide range of interests that we have. One of the torts that we look at is the tort of trespass and trespass is largely about interference and it’s about interference with land, interference with goods, and interference with the person. Now, “torts” is a funny word that you might not have come across before. It’s ancient French and it makes reference to a wrong.

Skip to 1 minute and 47 seconds JOANNA KYRIAKIS: And all of these three forms of tort which are called “trespass” have things in common and that’s why they share that same name. So the common elements of trespass are that, first of all, to be committed, they must be the result of a positive and a voluntary act. So a failure to do something, whilst that might be some other form of tort, it can’t be a trespass. Other elements are that the interference doesn’t have to cause any harm, any damage. It’s “actionable per se” is the language that we use–

Skip to 2 minutes and 23 seconds NICOLE MOLLARD: Which again, is different to some other torts.

Skip to 2 minutes and 26 seconds JOANNA KYRIAKIS: Indeed and it’s a good example of a key distinction between trespass and the very important tort of negligence. Negligence at its heart is about causing injury to other persons, causing harm. Trespass, furthermore, can only occur if it’s direct.

Skip to 2 minutes and 41 seconds NICOLE MOLLARD: Yep.

Skip to 2 minutes and 42 seconds JOANNA KYRIAKIS: There must be a very direct link between what the person has done, the positive and voluntary act, and the interference with the protected interest. And finally, it might come about either intentionally or actually carelessly. So you can carelessly commit a trespass. And in that sense, it can overlap with the tort of negligence. I think tort law plays a really important function in our community. It set standards that we’re all expected to abide by in a manner that is similar to the criminal law but operates on a personal basis, meaning that individuals can actually seek some sort of financial compensation if they are harmed by the carelessness or the intentional wrongdoing of others.

Skip to 3 minutes and 26 seconds And this is a really important, I think, way of redressing the losses that can be experienced by individuals.

Skip to 3 minutes and 34 seconds NICOLE MOLLARD: The law of contract deals with those agreements and obligations that people choose to have between one another. You do this for me and I’ll give you this much money. And the criminal law allows for the state to regulate behavior. Don’t do this or that or we’ll send you to jail or give you a fine. But tort law is about the relationships between people that the law imposes upon us and we don’t have a great deal of choice about whether we comply with them.

Skip to 4 minutes and 1 second And so that’s a reminder to us all to take care of our neighbors because we may will owe them a duty of care and to be careful not to intrude on those basic rights that tort law gives us all to our land, to our goods, and to our person.

Skip to 4 minutes and 20 seconds JOANNA KYRIAKIS: And tort law creates a system where an individual can repair the harm that they’ve done– in financial terms, admittedly– but can repair the harms they’ve done to others through their carelessness or their inadvertence or sometimes their intentional disregard of the interests of others around them.

Skip to 4 minutes and 37 seconds NICOLE MOLLARD: And that fits in quite nicely with the criminal law, in that it’s largely not the role of the criminal law for that repair on an individual level or perhaps there is a societal level to it.

Skip to 4 minutes and 48 seconds JOANNA KYRIAKIS: Yes.

Skip to 4 minutes and 49 seconds NICOLE MOLLARD: So they dovetail quite nicely.

Skip to 4 minutes and 51 seconds JOANNA KYRIAKIS: Yes.

Introduction to torts law

Watch Melissa (Deputy Director, Castan Centre for Human Rights Law & Senior Lecturer, Faculty of Law), Jo (Lecturer, Faculty of Law) and Nicole (Senior Fellow, Barrister, Accredited Mediator and Sessional Lecturer, Faculty of Law) talk about the range of torts and how they operate in the real world for us all.

So, what’s the point of torts?

One way of thinking about torts is how it regulates our responsibilities to each other in the community, even if we don’t have a contract, or have any kind of prior relationship. Torts law can deter people or companies from doing, or failing to do things, that place the public at risk of harm or injury.

What’s the difference?

Unlike criminal law, torts are private law claims brought by individuals against other individuals or the state. If the tort is proven on the balance of probabilities by a plaintiff, a court can order a remedy aimed at putting the plaintiff back in the same position before the harm occurred, usually in the form of monetary compensation, known as damages.

Torts therefore also performs an important compensatory aspect in the wider community for individuals who have suffered harm.

The future

Torts law is always changing and developing. A number of authors point to how the nature of tort claims follows changes in our economy, workplace and lifestyle. Just 20 years ago, tort claims were seen in repetitive strain injuries to workers sustained from new working positions with computers or typewriters.

Today, we know that secondhand tobacco smoke, or asbestos are dangerous because of tort claims. Who knows, in the future, we may even see claims for long term environmental impact because of climate change.

Talking point

Within the Comments, consider sharing with other learners your thoughts on the following question:

  • Do you think that tort law fills the gap between contract law and criminal law well in helping to ensure compensation for wrongs and to create a just and fair society for us all?

Don’t forget to contribute to the discussion by reviewing the comments made by other learners, making sure you provide constructive feedback and commentary. Remember you can also ‘like’ comments or follow other learners throughout the course.

Go to Downloads for a link to Torts law, a document that provides more detail on negligence, defences to negligence claims and defamation.

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Law for Non-Lawyers: Introduction to Law

Monash University