Torts law is an important aspect of civil (non-criminal) law in the Australian legal system. The word ‘tort’ is derived from French and means 'wrong'. Torts law is generally divided into three broad categories:

• negligence torts;
• intentional torts; and
• strict liability torts.

A negligence tort involves acting or failing to act in a way that would be considered negligent by a reasonable person and which results in a 'wrong' causing damage to someone. Usually there will also be a legal obligation to act or not act in a certain way that has been breached. An example might be failing to apply a handbrake to a vehicle when parking on a steep street resulting in it rolling forward and causing damage. You may or may not have intended to put the hand brake on but you did not intend any damage to occur as a result.

An intentional tort involves deliberately acting in a certain way that results in a wrong to someone. Examples include trespassing on private property or publishing defamatory material.

A strict liability tort is where a specific law requires a certain standard to be met or a certain action to be done or avoided. If a law is breached the tort or wrong has been committed regardless of whether you intended it or not. There are workplace laws in some states and territories that create strict liability torts.
To bring an action under any category of tort a plaintiff or complainant must prove the essential elements (parts) of the claim. For example to establish that a tort of negligence has been committed the party who has been wronged must prove:

• the defendant owed them a duty of care (was required by law to act or not act in a particular manner towards them);
• there was a breach or failure to observe that duty of care;
• damage resulted from that breach; and
• the damage that resulted was reasonably foreseeable to a reasonable person standing in the shoes of the defendant.

Proving each of these 4 elements is required to successfully sue someone for negligence. Your knowledge or belief that an act or failure to act caused a wrong is often quite different to being able to prove it in court. There are standards of evidence that must be met in order to prove to a court that something did or did not happen.

Common torts under Australian law include defamation, negligence, nuisance and trespass to goods, land or a person.

Defendants also have access to defences under the law. If the defendant succeeds in proving their defence the court may reduce the amount of damages available (payable) to the plaintiff. Torts law is a very broad area of civil law and there are many different Acts (or written laws) in each state and territory regulating this area of law.

This Legal Guide on Torts and Negligence gives a general overview of relevant torts law based on the position in Australia nationally and where appropriate the position in NSW at the time of writing. Most other states and territories have similar laws. Before making important decisions it is advisable to obtain legal advice specific to your situation. LegalEagle’s™ free directory profiles all lawyers in Australia. You can use it to Find a Lawyer near you who specialises in torts law.

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Warning: Information provided through LegalEagle™ is for general guidance. It is not legal advice. Laws and procedures referred to may change and differ between states, territories and nationally. There may also be important exceptions or qualifications. Only a lawyer providing formal legal advice can assess your particular circumstances to determine how the law will apply.