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Tort Liability 101

Torts. Negligence. Defamation. Civil law. Criminal Law. Liability. Trespass. Accountable. Compensation. Courts. Law. Lawyers. Plaintiff. Defendant.

If you can define each of those terms, you probably don't need to be reading this. If you can't and you want to know exactly what tort liability means you're in the right place. People take years studying civil law and torts but if you want a basic overview of what it means to you, and how you can protect yourself from civil action, read on.

What are Torts?

A tort is an injury to another person or to property and this injury is compensable under law. It is worth noting from the very beginning that legally, injury isn't limited to physical harm and can, depending on the circumstance, include emotional and psychological damage. Torts are categorised into various types of negligence, gross negligence and intentional wrongdoing.

How Can Someone Claim Negligence Against Me?

If you are facing one or more liability claims, the person bringing the action against you must be able to prove four points: that you had a legal duty of care, that your actions (or inactions) did not satisfy that duty, that the claimant suffered injury, or damages, and that these damages were caused by the breach of duty.

What Can I do to Protect Myself from Liability Claims?

The obvious answer to this one is to do everything you can to ensure the service you are providing is of a high standard and is not going to result in any person or their property being harmed. Of course, you can't control everything that happens in the world and people are aware of that. To be sure what your legal responsibilities are, parties often sign a liability waiver, which outlines who is responsible for what.

Commercial General Liability Insurance

If you run your own business and you only need a very general type of insurance, this is probably the one for you. The wide range of cover it provides is designed to protect businesses from claims made against them in regards to bodily injury, property damage, advertising injury and personal injury (including slander, or libel). Commercial general liability insurance also commonly includes the legal costs associated with defending or settling claims, even if the claim being made isn't a fair claim. If businesses try to get away without liability insurance and they find someone bringing a tort liability claim against them, the business will often suffer heavily financially and small businesses can quickly be ruined this way. Commercial general liability insurance protects businesses from these types of heavy financial loses so even while facing civil action, the business is able to function. The impact claims can have on a business's reputation, however, cannot be protected by any kind of insurance cover.

Liability Waivers

This is a document signed by a client when engaging the services of another individual or business and there are a lot of good reasons why you should understand the ins and outs of any liability waiver you are ever asked to sign. It cannot be stressed enough how important it is to read through the fine print. If a phrase seems unclear or indefinite, ask for clarification. Initial all pages and keep copies, preferably originals. It's just like a condition report when you move into a new rental apartment. You would keep a copy of the condition report for your own records, wouldn't you? Well, why should a liability waiver be any different?

What are in them?

Liability waivers basically set the terms for a professional working relationship. Typically, they contain a waiver by the client that they accept full responsibility for any "risks or loss, property damage or personal injury, including death, which may be sustained by me". It will also release the first party from responsibility for loss or damage to the client's property if it comes as a result of participating or engaging in a tour/sport/event/contract/etc. Commonly, the waivers also protect the company's employees and affiliates from legal action. If you notice the word "voluntary" is repeated quite a few times throughout liability waivers, that's not without reason. If a signatory can prove they were coerced into signing a waiver, the document will not stand in court should any civil action be brought against the first party!

Unspoken Waivers

Not all liability waivers are signed agreements. If government takes all due care to provide safe walking tracks at a popular bushwalking site, and erects a sign saying that people hike at their own risk, anyone who walks on the site has agreed to waive liability in the event they are injured. Similarly, public rivers and dams often have signs saying that people swim at their own risk: no-one is banning people from swimming but they are also saying that if you do so, you and you alone are responsible for any injury you may sustain from the activity.