TORTS, LAW OF
There is no completely satisfactory definition of a tort. Sir John Salmond described a tort as a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. Torts and crimes have for centuries been distinct, although the same act – for example, assault or conversion – may be both a tort and an offence. The principal function of the law of torts is to compensate individuals for harm done by others. The criminal law on the other hand exists mainly to protect society by preventing the commission of prohibited acts. The compensation paid for injury to person or property (although it must be made clear that a right of action does not lie for every injury) is initially a burden on the wrongdoer. The introduction, however, of compulsory third-party and industrial accident insurance, the growth of voluntary insurance, and the effect of insurance on prices, are spreading the burden over the community.
The law of torts has been developed almost wholly by the Courts. Since New Zealand Courts are zealous to keep in line with English decisions, and since what legislation there has been is mostly adopted from England, the local element in our law of torts is small. The indirect effect of local legislation has not been studied but is clearly considerable.
Examples of common torts are conversion of goods, nuisance, and defamation. Nuisance is the use of property in such a way as to interfere wrongfully with our neighbour's enjoyment of his property. The “natural use” of land is not a legal nuisance, and as the growing of trees is treated as a natural use, the common law gives no remedy for harm caused by overshadowing trees. This has led in New Zealand to recent legislation to deal with the problem. Our law of defamation differs in some respects from English law, most notably in the absence since 1954 of any distinction between libel (broadly, written defamation) and slander (spoken defamation).
The most important tort, however, is negligence, the breach of a duty to take care. The Courts often recognise new situations in which there is a duty of care, and this part of the law is far from static. Perhaps the most common fields of negligence are industrial accidents, vehicle accidents, and accidents to visitors. Together they form a considerable proportion of the civil cases coming before the Courts.
In New Zealand most negligence actions in the Supreme Court are tried by a jury, and compensation for loss is sometimes awarded without too strict an examination into whether a duty of care has been broken. Pushed to a conclusion, this could effect a radical behind-scenes change in the basis of liability. Recognising this, and taking account of the growth of liability insurance, it was suggested that in such fields as motor accidents the law should openly abandon the notion of a duty of care. A committee was set up in 1962 to examine the desirability of introducing strict liability for personal injuries caused by the use of motor vehicles. Its report was against such a change for the present.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.
- The Law of Torts in New Zealand, Davis, A. G. (1959)
- The Law of Torts, Fleming, J. G. (1961)
- The Law of Torts, Salmond, J. W., and Heuston, R. S. V. (1957).