Tort law is the name given to a body of law that creates, and provides remedies for, civil wrongs that do not arise out of contractual duties. A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law [1] A person who is legally injured may be able to use tort law to recover damages from someone who is legally responsible, or "liable," for those injuries. In Law, damages refers to the money paid or awarded to a Claimant (England Pursuer (Scotland or Plaintiff (US following a successful Generally speaking, tort law defines what constitutes a legal injury, and establishes the circumstances under which one person may be held liable for another's injury. Torts cover intentional acts and accidents.
For instance, if somebody throws a ball and hits a pedestrian in the eye, the pedestrian may sue the ball thrower for losses occasioned by the accident (for example, costs of medical treatment or lost income during time off work). Whether or not the pedestrian wins will depend on whether he can prove the thrower engaged in tortious conduct. If the person threw the ball at the pedestrian on purpose, the pedestrian could sue for the intentional tort of battery. An intentional tort is a category of Torts that describes a civil wrong resulting from an intentional act on the part of the Tortfeasor. At Common law, battery is the Tort of intentionally (or in Australia, negligently and voluntarily bringing about an unconsented harmful or offensive If it was an accident, the pedestrian must establish negligence. Negligence (Lat negligentia from negligere to neglect literally "not to pick up" is a legal concept in the Common law legal systems usually used to To do this, the pedestrian must show that his injury was reasonably foreseeable, that the thrower owed him a duty of care, and that the thrower fell below the standard of care required of him. One of the main issues in negligence law is determining the "standard of care" - a legal phrase that means distinguishing between when conduct is or is not negligent.
In much of the western world, the touchstone of tort liability is negligence. Negligence (Lat negligentia from negligere to neglect literally "not to pick up" is a legal concept in the Common law legal systems usually used to Unless the injured person can prove that the person they believe injured them acted with at least negligence to cause their injury, tort law will not compensate them. Tort law also recognizes intentional torts and strict liability, which apply to defendants who engage in certain actions. An intentional tort is a category of Torts that describes a civil wrong resulting from an intentional act on the part of the Tortfeasor. Strict liability is a Legal doctrine that makes a person responsible for the damage and loss caused by his/her acts and omissions regardless of Culpability (or fault
In tort law, potential "injuries" are defined broadly. Injury does not just mean a physical injury such as where the pedestrian is struck by a ball. "Injuries" in tort law reflect any invasion of any number of individual "interests. " This includes interests recognized in other areas of law, such as property rights. Property is any physical or virtual entity that is owned by an individual Actions for nuisance and trespass to land can arise from interfering with rights in real property. Nuisance (through Fr noisance nuisance from Lat nocere to hurt is a Common law Tort. Trespass (Fr trespas a crime properly a stepping across from Lat Conversion and trespass to chattles can protect interference with movable property. Interests in prospective economic advantages from contracts can also be injured and become the subject of tort actions. A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law A number of situations caused by parties in a contractual relationship may nevertheless be tort rather than contract claims, such as breach of fiduciary duty
Tort law may also be used to compensate for injuries to a number of other individual interests that are not recognized in property or contract law, and are intangible. fiduciary duty is a legal relationship of confidence or trust between two or more parties most commonly a fiduciary or Trustee and a principal This includes an interest in freedom from emotional distress, privacy interests, and reputation. These are protected by a number of torts such as infliction, privacy torts, and defamation. Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively Defamation and privacy torts may, for example, allow a celebrity to sue a newspaper for publishing an untrue and harmful statement about him. Other protected interests include freedom of movement, protected by the intentional tort of false imprisonment. False imprisonment is a Tort, and possibly a Crime, wherein a person is intentionally confined without legal authority
The equivalent of tort in civil law jurisdictions is delict. Civil law or Romano-Germanic law or Continental law is the predominant system of law in the world. Delict is a concept of civil law in which a willful wrong or an act of negligence gives rise to a legal obligation between parties even though there has been no contract [2] The law of tort can be categorised as part of the law of obligations, but, unlike voluntarily assumed obligations (such as those of contract, or trust), the duties imposed by the law of tort apply to all those subject to the relevant jurisdiction. The Law of Obligations is one of the component private law elements of the civil law system of Law. In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority To behave 'tortiously' is to harm another's body, property, or legal rights, or, possibly, to breach a duty owed under statute. Human rights refers to the "basic Rights and freedoms to which all humans are entitled Property is any physical or virtual entity that is owned by an individual Statutory law or statute law is written Law (as opposed to oral or Customary law) set down by a Legislature or other governing One who commits a tortious act is called a "tortfeasor". [3] Torts is one of the American Bar Association mandatory first year law school courses. The American Bar Association ( ABA) founded August 21 1878 is a voluntary Bar association of Lawyers and law students which is not specific [4]
Contents |
Etymology
Middle English, "injury", from Anglo-French, from Medieval Latin tortum, from Latin, neuter of tortus "twisted", from past participle of torquēre. Middle English is the name given by Historical linguistics to the diverse forms of the English language spoken between the Norman invasion of Medieval Latin was the form of Latin used in the Middle Ages, primarily as a medium of scholarly exchange and as the Liturgical language of the medieval In Linguistics, a participle (from Latin participium, a Calque of Greek μετοχη "partaking" is a derivative of a non-finite
Categories of torts
Torts may be categorised in a number of ways: one such is to divide them into Negligence Torts, and Intentional Torts.
The dominant action in tort is negligence. Negligence (Lat negligentia from negligere to neglect literally "not to pick up" is a legal concept in the Common law legal systems usually used to The tort of negligence provides a cause of action leading to damages, or to injunctive relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. In Law, damages refers to the money paid or awarded to a Claimant (England Pursuer (Scotland or Plaintiff (US following a successful An injunction is an Equitable remedy in the form of a Court order, whereby a party is required to do or interact with in certain ways all right or to refrain from Negligence actions include claims arising primarily from automobile accidents and personal injury accidents of many kinds, including clinical negligence. Product liability cases may also be considered negligence actions, but there is frequently a significant overlay of additional statutory content. Product liability is the area of law in which manufacturers distributors suppliers retailers and others who make products available to the public are held responsible for the injuries
Among intentional torts may be certain torts arising out of the occupation or use of land. One such is the tort of nuisance, which connotes strict liability for a neighbor who interferes with another's enjoyment of his real property. Nuisance (through Fr noisance nuisance from Lat nocere to hurt is a Common law Tort. Strict liability is a Legal doctrine that makes a person responsible for the damage and loss caused by his/her acts and omissions regardless of Culpability (or fault Trespass allows owners to sue for incursions by a person (or his structure, for example an overhanging building) on their land. Trespass (Fr trespas a crime properly a stepping across from Lat There is a tort of false imprisonment, and a tort of defamation, where someone makes an unsupportable allegation represented to be factual which damages the reputation of another. False imprisonment is a Tort, and possibly a Crime, wherein a person is intentionally confined without legal authority
Workers Compensation laws were a legislative response to the common law torts doctrine placing limits on the extent to which employees could sue their employers in respect of injuries sustained during employment.
Negligence
Negligence is a tort which depends on the existence of a breach of duty of care owed by one person to another. Negligence (Lat negligentia from negligere to neglect literally "not to pick up" is a legal concept in the Common law legal systems usually used to In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a reasonable Standard of care while performing any acts One well-known case is Donoghue v. Stevenson[5] where Mrs. Donoghue (or M’Alister v Stevenson ( [1932] AC 562 1932 SC (H Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland and claimed that it had made her ill. Paisley (Pàislig is a town and former Burgh in the west- Central Lowlands of Scotland. Scotland ( Gaelic: Alba) is a Country in northwest Europethat occupies the northern third of the island of Great Britain. The snail was not visible, as the bottle of ginger beer in which it was contained was opaque. Ginger beer is a type of carbonated Soft drink or occasionally Alcoholic beverage flavored primarily with Ginger, Lemon and Neither her friend, who bought it for her, nor the shopkeeper who sold it were aware of its presence. The manufacturer was Mr. Stevenson, whom Mrs. Donoghue sued for damages for negligence. She could not sue Mr. Stevenson for damages for breach of contract because there was no contract between them. A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law The majority of the members of the House of Lords agreed (3-2) that Mrs. The House of Lords is the second house of the Parliament of the United Kingdom and is also commonly referred to as "the Lords" Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this should be treated as a new product liability case. Hugh Pattison Macmillan Baron Macmillan GCVO PC ( 20 February 1873 &ndash 5 September 1952) was a Scottish judge Lord Atkin argued that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbors. James Richard Atkin Baron Atkin ( November 28, 1867 - June 25, 1944) was a Lawyer and Judge of Australian He quoted the Bible in support of his argument, specifically the general principle that "thou shalt love thy neighbor. Etymology According to the Online Etymology Dictionary, the word bible is from Latin biblia, traced from the same word through Medieval Latin and Late Latin " The elements of negligence are:
- Duty of care
- Breach of that duty
- Breach being a proximate or not too remote a cause, in law
- Breach causing harm in fact
Statutory torts
A statutory tort is like any other, in that it imposes duties on private or public parties, however they are created by the legislature, not the courts. In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a reasonable Standard of care while performing any acts In Tort, there can be no Liability in Negligence unless the Claimant establishes both that he or she was owed a duty of care by the defendant For English law, see Causation in English law In the Law, a proximate cause is an event sufficiently related to a legally recognizable injury Causation is the "causal relationship between conduct and result Product liability is the area of law in which manufacturers distributors suppliers retailers and others who make products available to the public are held responsible for the injuries This article is about the Common law concept of a trespasser for the computer game see Jurassic Park Trespasser In the Law of This article is about the Common law concept of a licensee see here for information on Licenses A licensee is a term used One example is in consumer protection, with the Product Liability Directive in the European Union, where businesses making defective products that harm people must pay for any damage resulting. The European Union ( EU) is a political and economic union of twenty-seven member states, located primarily in Liability for defective products is strict in most jurisdictions. The theory of risk spreading provides support for this approach. Since manufacturers are the 'cheapest cost avoiders', because they have a greater chance to seek out problems, it makes sense to give them the incentive to guard against product defects.
Another example is the Occupiers' Liability Acts[6] in the UK whereby a person, such as a shopowner, who invites others onto land, or has trespassers, owes a minimum duty of care for people's safety. Occupiers' liability is a field of Tort law, codified in statute which concerns the Duty of care that those who occupy property owe to people who visit One early case was Cooke v Midland Great Western Railway of Ireland,[7] where Lord MacNaughton felt that children who were hurt whilst looking for berries on a building site, should have some compensation for their unfortunate curiosity. Statutory torts also spread across workplace health and safety laws and health and safety in food produce.
The concept of statutory torts is not held throughout all common-law countries, however. Courts in both the United States and Canada have rejected the concept that a statutory duty can be the basis of a private cause of action, absent a specific provision in statute authorising such a cause of action. The United States of America —commonly referred to as the Country to "Dominion of Canada" or "Canadian Federation" or anything else please read the Talk Page In the law a cause of action (sometimes called a claim) is a set of facts sufficient to justify a right to sue
Nuisance
The tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. Nuisance (through Fr noisance nuisance from Lat nocere to hurt is a Common law Tort. Rylands v Fletcher ( 1868) LR 3 HL 330 is a landmark English legal case in which the Court of the Exchequer Chamber first applied the doctrine A good example of this is in the case of Jones v Powell (1629). [8] A brewery made stinking vapors which wafted onto neighbors' property, damaging his papers. A brewery is a dedicated building for the making of Beer, though beer can be made in the home and has been for much of beer's history As he was a landowner, the neighbor sued in nuisance for this damage. But Whitelocke J, speaking for the Court of the King's Bench, said that because the water supply was contaminated, it was better that the neighbor's documents were risked. The Queen's Bench (or during the reign of a male monarch the King's Bench) is the superior court in a number of jurisdictions within some of the Commonwealth realms He said "it is better that they should be spoiled than that the common wealth stand in need of good liquor. " Nowadays, interfering with neighbors' property is not looked upon so kindly. Nuisance deals with all kinds of things that spoil a landowner's enjoyment of his property.
A subset of nuisance is known as the rule in Rylands v. Fletcher[9] where a dam burst into a coal mine shaft. Rylands v Fletcher ( 1868) LR 3 HL 330 is a landmark English legal case in which the Court of the Exchequer Chamber first applied the doctrine So a dangerous escape of some hazard, including water, fire, or animals means strict liability in nuisance. Strict liability is a Legal doctrine that makes a person responsible for the damage and loss caused by his/her acts and omissions regardless of Culpability (or fault This is subject only to a remoteness cap, familiar from negligence when the event is unusual and unpredictable. Negligence (Lat negligentia from negligere to neglect literally "not to pick up" is a legal concept in the Common law legal systems usually used to This was the case where chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's reservoirs. East Anglia is often used as a shorthand for the Kingdom of the East Angles. A reservoir is most broadly a place or hollow vessel where Fluid is kept in Reserve, for later use [10]
Free market environmentalists would like to expand tort damage claims into pollution (i. Free-market environmentalism is a position that argues that the Free market, Property rights, and Tort law provide the best tools to preserve the health Pollution is the introduction of contaminants into an environment that causes instability disorder harm or discomfort to the physical systems or living organisms they are in e. toxic torts) and environmental protection. A toxic tort is a special type of Personal injury lawsuit in which the Plaintiff claims that exposure to a chemical caused the plaintiff's injury or disease Environmentalism is a broad philosophy and Social movement centered on a concern for the conservation and improvement of the environment. [11][12]
Defamation
Defamation means tarnishing the reputation of someone. The McDonald's Restaurants v Morris & Steel, colloquially the McLibel case, was a long-running English court action for Libel It is divided into two parts, slander and libel. Slander is spoken defamation and libel is defaming somebody through print (or broadcasting). Both share the same features. To defame someone, you must (a) make a factual assertion (b) for which you cannot provide evidence of its truth. Defamation does not affect the voicing of opinions, but comes into the same fields as rights to free speech in the United States Constitution's First Amendment, or the European Convention's Article 10. The United States of America —commonly referred to as the The Constitution of the United States of America is the supreme Law of the United States. The Convention for the Protection of Human Rights and Fundamental Freedoms (also called the "European Convention on Human Rights" and "ECHR" was adopted under the Related to defamation in the US are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Privacy law is the area of law concerning the protection and preservation of the Privacy rights of individuals Abuse of process and malicious prosecution are often classified as dignitary torts as well. Abuse of process is a Common law intentional Tort. It is to be distinguished from Malicious prosecution, another type of tort that involves misuse of the Malicious prosecution is a Common law intentional Tort, while like the tort of Abuse of process, its elements include (1 intentionally (and
Intentional torts
Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. An intentional tort is a category of Torts that describes a civil wrong resulting from an intentional act on the part of the Tortfeasor. Intentional torts have several subcategories, including tort(s) against the person, including assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud. Assault is a Crime of Violence against another person. In some Jurisdictions including Australia and New Zealand, At Common law, battery is the Tort of intentionally (or in Australia, negligently and voluntarily bringing about an unconsented harmful or offensive False imprisonment is a Tort, and possibly a Crime, wherein a person is intentionally confined without legal authority Intentional infliction of emotional distress ( IIED) is a Tort claim of recent origin for intentional conduct that results in extreme emotional distress In the broadest sense a fraud is a Deception made for personal gain or to damage another individual Property torts involve any intentional interference with the property rights of the claimant. Those commonly recognized include trespass to land, trespass to chattels, and conversion. Trespass to land is a Common law Tort that is committed when an individual intentionally (or in Australia negligently enters the land of another without Trespass to chattels is a Tort whereby the infringing party has intentionally (or in Australia negligently interfered with another person's lawful possession of a Chattel In Law, conversion is an intentional Tort to Personal property (same as Chattel) where defendant's unjustified willful interference with the
Economic torts
Economic torts protect people from interference with their trade or business. The area includes the doctrine of restraint of trade and has largely been submerged in the twentieth century by statutory interventions on collective labour law and modern antitrust or competition law. Restraint of trade is a Common law doctrine relating to the enforceability of contractual restrictions on freedom to conduct business Labour law (also known as employment or labor law is the body of Laws administrative rulings and precedents which address the legal rights of and restrictions The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon. "[13]
Two cases demonstrated economic tort's affinity to competition and labor law. In Mogul Steamship Co. Ltd. [14] the plaintiff argued he had been driven from the Chinese tea market by competitors at a 'shipping conference' that had acted together to under price his company. Chinese tea consists of Tea leaves which have been processed using methods inherited from China. But this cartel was ruled lawful and "nothing more [than] a war of competition waged in the interest of their own trade. A cartel is a formal (explicit agreement among firms Cartels usually occur in an oligopolistic industry, where there is a small number of sellers and usually involve "[15] Nowadays, this would be considered a criminal cartel. In labor law the most notable case is Taff Vale Railway v. Amalgamated Society of Railway Servants. Taff Vale Railway Co v Amalgamated Society of Railway Servants 1901 AC 426 commonly known as the Taff Vale case was a suit brought by the Taff Vale Railway Company [16] The House of Lords thought that unions should be liable in tort for helping workers to go on strike for better pay and conditions. But it riled workers so much that it led to the creation of the British Labour Party and the Trade Disputes Act 1906 Further torts used against unions include conspiracy,[17] interference with a commercial contract[18] or intimidation. The Labour Party is a Political party in the United Kingdom. Founded at the start of the 20th century it has been since the 1920s the principal party of the The Trade Disputes Act 1906 ( Short title 6 Edward VII c 47) was an Act of the Parliament of the United Kingdom passed under the Liberal [19]
Through a recent development in common law, beginning with Hedley Byrne v Heller[20] in 1964 a victim of the tort of negligent misstatement may recover damages for pure economic loss caused by detrimental reliance on the statement. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive Misrepresentation is a tort as confirmed by Bridge LJ in Howard Marine and Dredging Co. Ltd. v A Ogden & Sons[21].
Competition law
Modern competition law is an important method for regulating the conduct of businesses in a market economy. A market economy is a realized Social system based on the Division of labour in which the prices of Goods and Services are determined in a A major subset of statutory torts, it is also called 'anti-trust' law, especially in the US, articles 81 and 82 of the Treaty of the European Union, as well as the Clayton and Sherman Acts in the U. The United States of America —commonly referred to as the The Maastricht Treaty (formally the Treaty on European Union, TEU) was signed on 7 February 1992 in Maastricht, the Netherlands after final S. , which create duties for undertakings, corporations and businesses not to distort competition in the marketplace. Cartels are forbidden on both sides of the Atlantic. So is the abuse of market power by monopolists, or the substantial lessening of competition through a merger, acquisition, or concentration of enterprises. In Economics, a monopoly (from Greek monos, alone or single + polein, to sell exists when a specific individual or enterprise has sufficient A huge issue in the EU is whether to follow the U. The European Union ( EU) is a political and economic union of twenty-seven member states, located primarily in S. approach of private damages actions to prevent anti-competitive conduct. [22]
Liability, defenses, and remedies
Vicarious liability
The word 'vicarious' derives from the Latin for 'change' or 'alternation' or 'stead'[23] and in tort law refers to the idea of one person being liable for the harm caused by another, because of some legally relevant relationship. This article is about vicarious liability in private litigation for vicarious liability in criminal law see Vicarious liability (criminal. Latin ( lingua Latīna, laˈtiːna is an Italic language, historically spoken in Latium and Ancient Rome. An example might be a parent and a child, or an employer and an employee. You can sue an employer for the damage to you by their employee, which was caused 'in the course of employment'. For example, if a shop employee spilled cleaning liquid on the supermarket floor, one could sue the employee who actually spilled the liquid, or sue the employers. In the aforementioned case, the later option is more practical as they are more likely to have more money. The law replies "since your employee harmed the claimant in the course of his employment, you bear responsibility for it, because you have the control to hire and fire him, and reduce the risk of it happening again. " There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation.
Defenses
A successful defense absolves the defendant from full or partial liability for damages. Apart from proof that there was no breach of duty, there are three principal defences to tortious liability.
Volenti non fit injuria
This is Latin for "to the willing, no injury is done". Volenti non fit injuria ( Latin: "to a willing person no injury is done" or "no injury is done to a person who consents" is a Common law Latin ( lingua Latīna, laˈtiːna is an Italic language, historically spoken in Latium and Ancient Rome. It operates when the claimant either expressly or implicitly consents to the risk of loss or damage. For example, if a spectator at an ice hockey match is injured when a player strikes the puck in the ordinary course of play, causing it to fly out of the rink and hit him or her, this is a foreseeable event and spectators are assumed to accept that risk of injury when buying a ticket. Ice hockey, often referred to simply as hockey, is a team Sport played on Ice. A slightly more limited defense may arise where the defendant has been given a warning, whether expressly to the claimant or by a public notice, sign or otherwise, that there is a danger of injury. The extent to which defendants can rely on notices to exclude or limit liability varies from country to country. This is an issue of policy as to whether (prospective) defendants should not only warn of a known danger, but also take active steps to fence the site and take other reasonable precautions to prevent the known danger from befalling those foreseen to be at risk.
Contributory negligence
This is either a mitigatory defence or, in the United States, it may be an absolute defence. Contributory negligence is a Common law defense to a claim based on negligence an action in Tort. When used as a mitigatory defence, it is often known in the US as comparative negligence. Under comparative negligence a plaintiff/claimant's award is reduced by the percentage of contribution made by the plaintiff to the loss or damage suffered. Thus, in evaluating a collision between two vehicles, the court must not only make a finding that both drivers were negligent, but it must also apportion the contribution made by each driver as a percentage, e. g. that the blame between the drivers is 20% attributable to the plaintiff/claimant: 80% to the defendant. The court will then quantify the damages for the actual loss or damage sustained, and then reduce the amount paid to the plaintiff/claimant by 20%. In all but four states in the US, if the defendant proves both that the plaintiff/claimant also acted negligently and that this negligence contributed to the loss or damage suffered, this is a complete defence.
This doctrine has been widely criticized as being too draconian, in that a plaintiff whose fault was comparatively minor might recover nothing from a more egregiously irresponsible defendant. Doctrine (Latin doctrina) is a codification of beliefs or "a body of teachings quot or "instructions" taught principles or positions as the In all but four US states, it has been replaced judicially or legislatively by the doctrine of comparative negligence. In the United States, comparative negligence is a partial defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon Comparative negligence has also been criticized, since it would allow a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant, and often more when a jury is feeling sympathetic. Economists have further criticized comparative negligence, since under the Learned Hand Test it will not yield optimal precaution levels. Billings Learned Hand (January 27 1872 – August 18 1961
Illegality
Ex turpi causa non oritur actio is the illegality defence, the Latin for "no right of action arises from a despicable cause". In civil law, especially Contract law, ex turpi causa non oritur actio is the doctrine that an action may not be founded on illegality If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained "but for" the property owner's intervention.
Remedies
The main remedy against tortious loss is compensation in 'damages' or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defence against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction. An injunction is an Equitable remedy in the form of a Court order, whereby a party is required to do or interact with in certain ways all right or to refrain from This means a command, for something other than money by the court, such as restraining the continuance or threat of harm. [24] Usually injunctions will not impose positive obligations on tortfeasors, but some Australian jurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters. For a topic outline on this subject see List of basic Australia topics. A defendant or defender ( Δ in Legal shorthand) is any party who is required to answer the Complaint of a Plaintiff [25]
Theory and reform
Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated and punitive. Tort reform refers to the idea of changing the rules applicable to the Law of Tort. In Law, damages refers to the money paid or awarded to a Claimant (England Pursuer (Scotland or Plaintiff (US following a successful Aggravation, in Law, is "any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences but which Punitive may refer to Punishment Punitive damages In The Aims of the Law of Tort (1951),[26] Glanville Williams saw four possible bases on which different torts rested: appeasement, justice, deterrence and compensation. Glanville Llewelyn Williams QC, LLD FBA ( 15 February 1911 &ndash 10 April 1997) was an influential Welsh Legal
From the late 1950s a group of legally oriented economists and economically oriented lawyers emphasized incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. The 1950s Decade refers to the years of 1950 to 1959 inclusive Risk is a Concept that denotes the precise probability of specific eventualities They are often described as the law and economics movement. Law and Economics, or economic analysis of law is an approach to Legal theory that applies methods of Economics to law Ronald Coase, one of the movement's principal proponents, submitted, in his article The Problem of Social Cost (1960),[27] that the aim of tort should be to reflect as closely as possible liability where transaction costs should be minimized. Ronald Harry Coase (born December 29, 1910) is a British Economist and the Clifton R In Economics and related disciplines a transaction cost is a Cost incurred in making an economic exchange
Calls for reform of tort law come from diverse standpoints reflecting diverse theories of the objectives of the law. Some calls for reform stress the difficulties encountered by potential claimants. Because of all people who have accidents, only some can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery". Patrick S Atiyah QC FBA (born March 5, 1931) is an English Lawyer and Academic. [28] Consequently, in New Zealand, the government in the 1960s established a "no-fault" system of state compensation for accidents. New Zealand is an Island country in the south-western Pacific Ocean comprising two main landmasses (the North Island and the South Island The 1960s decade refers to the years from the beginning of 1960 to the end of 1969 Similar proposals have been the subject of Command Papers in the UK and much academic debate. A command paper is a document issued by the British government and presented to Parliament.
However, in the U.S. calls for reform have tended to be for drastic limitation on the scope of tort law, a minimisation process on the lines of economic analysis. The United States of America —commonly referred to as the Anti-trust damages have come under special scrutiny,[29] and many people believe the availability of punitive damages generally are a strain on the legal system. Punitive damages (termed exemplary damages in the United Kingdom) are Damages not awarded in order to compensate the Plaintiff, but in order
Theoretical and policy considerations are central to fixing liability for pure economic loss and of public bodies. In Law, economic loss refers to financial loss and damage suffered by a person such as can only be seen in Balance sheets rather than physical injury to the person
Overlap with criminal law
There is some overlap between criminal law and tort, since tort, a private action, used to be used more than criminal laws in the past. For example, in English law an assault is both a crime and a tort (a form of trespass to the person). English law is the legal system of England and Wales, and is the basis of Common law legal systems used in most Commonwealth countriesand the A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of damages to a person injured in a car accident, or the obtaining of injunctive relief to stop a person interfering with their business). In Law, damages refers to the money paid or awarded to a Claimant (England Pursuer (Scotland or Plaintiff (US following a successful An injunction is an Equitable remedy in the form of a Court order, whereby a party is required to do or interact with in certain ways all right or to refrain from Criminal actions on the other hand are pursued not to obtain remedies to assist a person — although often criminal courts do have power to grant such remedies — but to remove their liberty on the state's behalf. That explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts. Incarceration is the detention of a person in Jail or Prison.
Many jurisdictions, especially the US, retain punitive elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with criminal acts. Punitive may refer to Punishment Punitive damages Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment. Some torts may have a public element — for example, public nuisance — and sometimes actions in tort will be brought by a public body. Nuisance (through Fr noisance nuisance from Lat nocere to hurt is a Common law Tort. Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restitution which criminal courts can directly order the defendant to pay to the victim. [30]
Tort by legal jurisdiction
Legal jurisdictions whose legal system developed from the English common law have the concept of tortious liability. English law is the legal system of England and Wales, and is the basis of Common law legal systems used in most Commonwealth countriesand the Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive There are technical differences from one jurisdiction to the next in proving the various torts. For the issue of foreign elements in tort see Tort and Conflict of Laws. In Conflict of Laws, the Choice of law rules for Tort are intended to select the Lex causae by which to determine the nature and scope
- Australian tort law
- Canadian tort law
- English tort law
- Scots Law of Delict (equivalent)
- United States tort law
- Irish tort law (see Irish Citizens Information Board)
In addition, other legal systems have concepts comparable to torts. Tort law in Australia is the body of Precedents and to a lesser extent Legislation, that together define the operation of Tort law in Australia Tort law in Canada concerns the treatment of the law of Torts within the Canadian jurisdiction excluding Quebec, which is covered by the Law of obligations Tort law in England and Wales concerns civil wrongs as distinguished from criminal wrongs. Delict is the responsibility to make reparation caused by breach of a duty of care in Scots Law. Under United States tort Law, Torts are generally divided into three categories intentional torts, Negligence, and Strict liability See, for instance, the rabbinic category of Damages (Jewish law). Jewish law, damages ( Hebrew: nezikin נזיקין covers a range of jurisprudential topics that roughly correspond in Secular Law
See also
Notes
- ^ "Tort" is the Norman word for a "wrong. This list is not necessarily complete or up to date - if you see an article that should be here but isn't (or one that shouldn't be here but is please update the page accordingly Palsgraf v Long Island Rail Road Co: Landmark case for discussion of proximate cause and its relationship with duty Tort reform refers to the idea of changing the rules applicable to the Law of Tort. Tort law refers to any given body of law that creates and provides remedy for civil wrongs that do not arise from contractual duties " as traditionally used, this kind of wrong is distinct from a contractual or criminal wrong. G. Edward White, Tort Law in America: An Intellectual History, (2003) p. xxiii.
- ^ Zweigert, P. & Kötz, H. (1998). An Introduction to Comparative Law, 3rd ed. , Oxford: Clarendon Press, pp595-628. ISBN 0198268599.
- ^ Legal Definition of Tortfeasor
- ^ PDF page 302
- ^ [1932] AC 562
- ^ see Occupier's Liability Act 1956 and 1984
- ^ [1909] AC 229
- ^ Jones v Powell (1629) 123 Eng. Rep. 1155
- ^ Rylands v. Fletcher (1866) LR 1 Exch 265
- ^ Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264
- ^ Law, Property Rights, and Air Pollution by Murray N. Rothbard
- ^ Property Rights in the Defense of Nature Enviroprobe
- ^ p. Murray Newton Rothbard (March 2 1926 – January 7 1995 was an American economist of the Austrian School who helped define modern Libertarianism 509 Markesinis and Deakin's Tort Law (2003 5th Ed. ) OUP)
- ^ Mogul Steamship Co. Ltd. v. McGregor, Gow & Co. (1889) LR 23 QBD 598
- ^ per Bowen LJ, (1889) LR 23 QBD 598, 614
- ^ Taff Vale Railway v. Amalgamated Society of Railway Servants [1901] AC 426
- ^ Quinn v. Leatham [1901] AC 495
- ^ Torquay Hotels Ltd v. Cousins [1968]
- ^ Rookes v. Barnard [1964] AC 1129
- ^ [1964] AC 465
- ^ [1978] QB 574
- ^ Richard Whish, Competition Law (2003) 5th Ed. , Lexis Nexis, Ch. 10
- ^ vicarious - Definition from the Merriam-Webster Online Dictionary
- ^ Miller v. Jackson [1975]
- ^ Currie, S. , & Cameron, D. (2000), "Your Law", Nelson Thomson Learning, Melbourne, p. 225
- ^ Williams, G. [1951] "The Aims of the Law of Tort", Current Legal Problems 137
- ^ Coase, R. H. (1960). "The Problem of Social Cost". The Journal of Law and Economics 3: 1-44. doi:. A digital object identifier ( DOI) is a permanent identifier given to an Electronic document. , reprinted in Coase, R. H. (1990). The Firm, the Market and the Law. Chicago: Chicago University Press, pp95-156. ISBN 0-226-11101-6. , online version
- ^ Atiyah, P. S. (1997) The Damages Lottery
- ^ see especially, Bork, R. (1971) The Antitrust Paradox
- ^ See also Ronen Perry, The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, 73 Tenn. L. Rev. 177 (2006). Year 2006 ( MMVI) was a Common year starting on Sunday of the Gregorian calendar.
Further reading
- Simon Deakin, Angus Johnston and Basil Markesinis, Tort Law (2003) 5th Ed. Oxford University Press, ISBN 0-19-925711-6
- Mark Lunney, Ken Oliphant, Tort Law - Texts, Cases (2003) 2nd Ed. Oxford University Press, ISBN 0-19-926055-9
- van Gerven, W. et al. (eds) (2001). Cases, Materials and Text on National, Supranational and International Tort Law. Oxford: Hart Publishing. ISBN 1841131393.
Dapyx Software network: MP3 Explorer | Ebook Manager | Zenithic