What is the distinction between a crime and a tort?

• A crime is any wrong doing committed against the community or a member of the community that has been legislated against (declared to be a crime by parliament). Examples include murder or manslaughter, road traffic offences, burglary, drug trafficking offences and aggravated assault. Crimes are prosecuted by the government and the courts determine the appropriate punishment for a person found guilty of committing a crime. The victim may receive compensation but this is separate from the offender’s punishment. Criminal law is public law. See our Criminal Law area for more information.
• A tort occurs when an individual suffers a wrong caused by the intentional, negligent or reckless act of another. The courts may help that individual obtain damages for their injury. The focus is on compensation rather than punishment although punitive damages may be awarded in rare cases for conduct that the court feels should be punished. Damages are also intended to have a deterrent effect to prevent other people engaging in the same wrongful behaviour. Torts law is private law.
• There is some overlap between intentional torts and the criminal law. For example assault and battery are both criminal offences and intentional torts. Offenders could find themselves being prosecuted and punished for the crime and sued by the victim for compensation under torts law for the same conduct.
• There are many other areas including motor vehicle accidents and fraud where the same conduct can give rise to prosecution under criminal legislation (written laws) and liability for damages under the common (historical judge made) law of torts.
• An action in tort will often be brought if a criminal prosecution fails under the higher standard of proof. Criminal offences must be proved beyond reasonable doubt and the offender must be shown to have had the required mental intention to cause harm known as ‘mens rea’. For negligence the offence must only be proved on the balance of probabilities to have caused the harm complained of and damages may be awarded if the offender committed the act:
  • intentionally but did not intend the actual harm that was caused;
  • recklessly in that the offender did not care whether or not their acts would cause harm; or
  • negligently in that a reasonable person in the offender’s place should have known that their actions could foreseeably cause harm of the kind that was suffered.