Blackwell Reference Online

Extract

The law of torts imposes legal liability on persons who in certain ways have caused certain kinds of harm to other persons. In the case of some torts – for example nuisance, which is concerned with interference with the use and enjoyment of land – the usual legal remedy that follows a finding of liability is an injunction, that is, an order issued by the court requiring the defendant to stop engaging in the harmful activity (or otherwise to put matters right). But the more common remedy in a torts case, and the one that typifies tort law as a legal regime, is an award of monetary damages. Damages is a backward-looking remedy that is intended to compensate the plaintiff for the harm suffered. The idea is to put the plaintiff, to the extent that it is possible to do so with money, in the position that he or she would have been in had the tort not occurred. The heart of tort law, then, is a legal obligation to pay compensation for harm caused, where the obligation is owed by the person who caused the harm directly to the person who suffered it. But not all harms, and not all ways of causing harm, give rise to such an obligation. Tortious liability is a function of both the nature of the defendant's conduct and the nature of the harm to the plaintiff that that conduct caused. When we focus on the defendant's conduct we ask what standard of liability should be employed to assess it, ... log in or subscribe to read full text