Article 2.4.2 General Principles of Tort Liability

(a) Foundational Standard: A person shall be liable in tort where they breach a legal duty owed to another, and that breach causes legally recognised harm.

(b) Core Common Law Doctrines:

Tort liability under this ICT Code is broadly based on English common law principles, including:

1. The principle of foreseeability: that harm shall have been reasonably foreseeable by a person in the position of the defendant;
2. The principle of proximity: that there shall be a relationship or closeness in circumstances giving rise to a legal duty of care; and

3. The standard of the reasonable person: that conduct is measured against what a hypothetical reasonable person would have done in similar circumstances.

   (c) Recognised Torts: This Chapter recognises both intentional and negligent torts, including but not limited to trespass, defamation, nuisance, and unlawful interference with economic interests.

   (d) Limitations on Strict Liability: Strict liability torts shall not apply within the ICT except where expressly stated in this ICT Code. Liability shall not arise solely by reason of harm occurring in the absence of fault, unless:

   (i) The activity is inherently dangerous; and

   (ii) The imposition of strict liability has been prescribed under this ICT Code.

   (e) Acts and Omissions: Tort liability may arise from acts or omissions, including failures to prevent foreseeable harm, where a legal duty exists. However, no person shall be liable for mere nonfeasance unless a specific legal duty to act exists by law, relationship, or undertaking.

   (f) Essential Elements of Liability:

   No person shall be held liable in tort unless:

   (i) A legal duty existed at the time of the alleged conduct;

   (ii) The duty was breached by act or omission;

   (iii) The breach caused harm that is legally recognised under this ICT Code or principles of tort law arising from ICT Court jurisprudence; and

   (iv) The harm is not too remote in law or fact, having regard to causation and policy considerations.

   (g) Available Defences:

Where appropriate, contributory negligence, voluntary assumption of risk, or other common law defences may limit or negate liability in accordance with this ICT Code and judicial precedent.

(h) Operator Guidance:

The Operator may issue supplementary guidance for the interpretation or application of general tort principles, provided that such guidance does not override the rights or obligations set out in this ICT Code.

(i) Legally recognised Harm:

For the purposes of this Chapter, legally recognised harm may include physical injury, property damage, economic loss, reputational harm, or emotional distress, provided such harm is recognised under common law principles or expressly acknowledged under this ICT Code. The application and enforcement of tort law under this ICT Code shall reflect principles of justice, reasonableness, and proportionality, and shall support the broader purposes of legal certainty, personal accountability, and community trust.

(j) Vicarious Liability:

A person may be held vicariously liable for the tortious acts of another where such acts were committed by an agent, employee, or other person acting within the scope of a recognised legal relationship and in furtherance of their assigned duties.

(k) Jurisdiction:

The ICT Court shall have jurisdiction over torts committed within the ICT or torts committed outside the ICT that cause substantial and foreseeable harm within its jurisdiction, consistent with principles of territorial and effects-based jurisdiction, and consistent with any ICT contractual arrangements and Part 5 of this ICT Code (as applicable).

(l) Relationship with Other Civil Liability Rules:

This Article shall operate without prejudice to any specific civil liability rules or remedies provided elsewhere in this Chapter or the broader ICT Code, including in relation to defamation, nuisance, environmental harm, or economic interference.

(m) Proportionality:

The ICT Court shall be guided by proportionality in determining liability and awarding remedies, ensuring responses are commensurate with the nature and impact of the harm.

(n) Ultra-Hazardous and Novel Activities:

Tort claims involving ultra-hazardous or novel activities may be subject to special procedural or evidentiary rules issued by the Operator or the ICT Court, provided such rules do not override the provisions of this ICT Code.

(o) Contributory Fault:

(i) Where a claimant has, by their own negligence, contributed to the harm suffered, any damages awarded shall be reduced in proportion to the claimant’s share of responsibility, as determined by the ICT Court.

(ii) Contributory fault does not bar recovery unless the claimant’s fault is the sole or majority cause of the harm.

(iii) The Court shall consider the claimant’s conduct in relation to:

(iv) The foreseeability of harm;

(v) Their knowledge or awareness of the risk;

(vi) Any unreasonable or avoidable exposure to danger; and

(vii) Failure to act reasonably to mitigate loss.

(viii) Apportionment of responsibility shall be guided by principles of fairness, causation, and the relative blameworthiness of the relevant parties.

(ix) Contributory fault may arise in claims for negligence, nuisance, product liability, or other torts where the claimant’s conduct was a factual and legal cause of the harm.