Law
Tort Law
Tort law is a branch of civil law that deals with civil wrongs, other than breaches of contract, that cause harm or loss to individuals or their property. It provides a legal framework for individuals to seek compensation for injuries or damages caused by the wrongful actions of others. Tort law encompasses a wide range of issues, including negligence, intentional torts, and strict liability.
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eBook - ePub- Graham Stephenson, Graham Stephenson(Authors)
- 2012(Publication Date)
- Routledge-Cavendish(Publisher)
CHAPTER 1
INTRODUCTION
Individuals, businesses and other organisations in a complex post-industrial society suffer losses of various kinds as a result of the activities of others. Tort Law is one of the areas of law primarily concerned with the question of whether these losses are to be compensated for by the person responsible for the relevant activity or whether the loss must lie where it falls, namely, with the victim. The other major area dealing with similar issues is the law of contract. Tort Law is, to a lesser extent, also concerned with preventing or deterring certain types of conduct. An action in tort is a civil action, as opposed to a criminal prosecution, and is initiated by an individual, business or other organisation, rather than by the State as is usually the case in a criminal matter. An action, in normal circumstances, will be brought in tort to obtain damages, monetary compensation, for some loss sustained by the victim, for example, personal injury, damage to or loss of property, damage to economic interests or loss of reputation.The word ‘tort’ is French for ‘wrong’, and we can therefore say that a tort is a civil wrong. Tort Law comprises the rules of liability which dictate whether the defendant's activity constitutes a civil wrong, thus enabling the court to grant a remedy, that is, compensation to the claimant victim. This seems straightforward enough but there are obvious difficulties with the explanation of what is Tort Law in view of the diverse nature of the causes of action which appear to fall within its scope. It is common in an introduction of this kind to discuss the issue of whether there is a law of tort or torts. The search for some unifying factor underlying all causes of action in tort, thus enabling us to distinguish between tort actions and other types of action, for example, actions for breach of contract, would appear to be a vain one. Indeed, the fragmentary nature of Tort Law would seem to militate strongly against discovery of any such principle. It might, therefore, be more appropriate to talk of a law of torts, a rather loose collection of random causes of action, a residual category of civil wrongs falling outside and independent of the law of contract, the other major source of civil wrongs. If this view is taken, it must nonetheless be acknowledged that the major part of the area covered in this and other books on Tort Law is within the scope of one single tort, that is, negligence, but by the same token, it has to be recognised that there are other causes of action, totally independent of negligence, with their own specialised rules of liability which clearly fall within the subject matter of Tort Law.
eBook - ePubUnderstanding the Law for Physicians, Healthcare Professionals, and Scientists
A Primer on the Operations of the Law and the Legal System
- Marshall S. Shapo(Author)
- 2018(Publication Date)
- Productivity Press(Publisher)
5 Tort Law GenerallyTort Law is a body of law that looms large in the minds of medical professionals, others engaged in risky activities, and makers and sellers of products that present some degree of danger to consumers and others who may encounter those products.5.1 Defining TortTort can be defined with varying degrees of abstractness. Tort Law is the body of law that governs actions for injuries claimed to be caused by behavior that is wrongful or otherwise regarded as unjust if it causes injury. Torts involve invasions of personal physical and mental security, interests in property, and some other kinds of economic interests. A convenient dividing line in law is the one between tort—which signifies injuries that occur when a claimant has had no opportunity to bargain on exposure to risk—and contract, where the parties make an agreement that at least in some sense covers risks. These two compartments are not airtight—sometimes Tort Law applies to cases that are partly covered by some kind of contract.When I say that text covers behavior that is “wrongful or otherwise regarded as unjust,” I note that there is a spectrum of liability theories that span a range of culpability and can even include liability without fault. At the most culpable end of this spectrum are “intentional” torts, a category that has been expanded to include not only conduct that has a desire or purpose to injure but in which the defendant is shown to have “knowledge of substantial certainty” that the injurious result will occur. Next down the spectrum are categories labeled “willful and wanton” conduct or reckless behavior. A shade less culpable is “gross negligence.” The most quantitatively important tort category is negligence. This tort has been defined in a dozen or more ways. The simplest kinds of definitions are those that speak of exposing “others to an unreasonable risk of harm” or a “failure to exercise reasonable care under the circumstances.” At the other end of the spectrum are doctrines of strict liability, which have been employed to impose liability in two major categories: Activities that are “abnormally dangerous” and products that are sold in “a defective condition unreasonably dangerous to the user.”
- Carrie de Silva, Jennifer Charlson, Carrie de Silva, Jennifer Charlson, Carrie de Silva, Jennifer Charlson(Authors)
- 2020(Publication Date)
- Routledge(Publisher)
10 The law of tort Carrie de SilvaIntroduction
The basis of liability in tort is probably one of the most difficult legal ideas for the layperson to grasp. The word itself is of French origin and means a ‘wrong’. Simply, the law of tort applies where the behaviour of one party causes, or threatens to cause, harm to the interests of another party. The rules of the law of tort determine when one party can be compensated for the behaviour of another. Tort is limited in its scope and, although new torts do evolve from time to time, there is not necessarily a legal remedy for every wrong suffered. A claimant will only succeed in an action if he or she can show that the defendant’s behaviour falls into a specified situation covered by the law of tort. Those specified situations are then given identifying names such as the tort of defamation, the tort of nuisance, the tort of negligence and the tort of trespass.Much of the law of tort has developed through judicial precedent although some of the rules are now statutory, for example, the Law Reform (Contributory Negligence) Act 1945, the Occupiers’ Liability Acts of 1957 and 1984 and the Torts (Interference with Goods) Act 1977. But case law continues to play a significant role in the development of tortious principles. Case law allows the rules to operate flexibly and to be applied to widely differing situations. The cost of that flexibility will sometimes be a lack of certainty and it can sometimes be difficult to say, with any precision, whether liability will arise.Compensating claimants under the law of tort is long-established in our legal system, with remedies for personal injury dating back to the Anglo-Saxons and trespass cases certainly from the thirteenth century. The earliest forms of tort usually gave protection to the person or to property (whether land or chattels), where the injury or damage which had been inflicted was direct. As society became more sophisticated, the law of tort developed to give protection against less direct forms of harm. Torts such as negligence and the torts designed to protect economic interests then evolved.
eBook - ePub- Kenny Chin(Author)
- 2014(Publication Date)
- Routledge-Cavendish(Publisher)
5 Tort LawThe nature of tortious liabilityYou should be familiar with the following areas:• the nature of tortious liability, strict liability and actionable per se tort• liability of an employer for torts committed by employees• general defences and remedies• understanding the various concepts in negligence• various types of trespass and their specific defences and remedies• nuisance and its comparison with trespass• defamation, its forms and specific defencesTorts are civil wrongs other than breach of contract or trust. As with contract, tort is classified as the law of obligation. Contractual obligations arise when an agreement is reached. For tort, there is no term agreed beforehand, however, these are rights, personal or on property, recognised and protected by law. These are our obligations, when living together with others in the society, to take reasonable care and not to intentionally harm others when we conduct our businesses.Torts include:- Negligence – carelessness causing physical harm or damage to others.
- Trespass to person – interference with another possibly causing physical harm.
- Defamation – damage to another’s reputation.
- Trespass to land/nuisance – interference with another’s interest in land.
- Trespass to goods – interference with another’s interest in goods.
Other examples of tort include infringements of others’ copyrights, patents and other intellectual properties. These are all actions which arise, not from contracts, but from obligations imposed on us by the operation of the law. There are overlaps between tort and crime, for example, assault and battery, both of which are concerned with acts that harm others. One main difference between tort and crime is their objectives. Crimes are conducts which are so undesirable that the law prohibits them. Torts cause damage to others so laws are created to provide compensation to the victims. When a dangerous machine is not fenced, it is a criminal offence. When the machine injures a person, he can sue for compensation.
12 Tort Law in context What is tort?In the Introduction to this book, we saw that Winfield states that tort is a breach of a duty fixed by law while Martin and Gibbins talk about a wrong which entitles an injured person to seek compensation. The duty situation is seen clearly in connection with negligence and in connection with breach of statutory duty. Negligence arises when a duty is breached and a person suffers resulting damage. An Act of Parliament may give rise to a right to sue for breach of duty in similar circumstances. In relation to other torts, the duty is not always so obvious but it can be found. Nuisance imposes a duty to use our land reasonably so as not to cause interference with the use of another’s land; trespass to the person reinforces a duty to respect another person’s autonomy; defamation imposes a duty to tell only the truth about someone else.It seems that both definitions can be shown to be correct but neither is particularly helpful in explaining exactly what a tort is in a way which is readily understood. It is perhaps easier to suggest a principle which underlies the development of this part of the law.The issue of faultAll of the torts discussed in this book have one thing in common – each in effect sets a standard of behaviour. Failure to meet the standard which causes injury to someone else allows the victim to seek a remedy from the courts for the defendant’s failure; in other words because the defendant was at fault, the defendant must pay.Lord Atkin, in Donoghue v Stevenson (1932), acknowledged that the law of tort is:based upon a general public sentiment of moral wrongdoing for which the offender must pay.This reflects the old legal adage, ‘There can be no liability without fault’. Case law demonstrates that this is now accepted as a principle in relation to all torts with the exception of those which are actionable per se
eBook - ePub- Matthew Cousins(Author)
- 2019(Publication Date)
- Routledge(Publisher)
5General principles of the law of tortGENERAL PRINCIPLES OF THE LAW OF TORT
Key legislation
- Compensation Act 2006
- Consumer Protection Act 1987
- Latent Defects Act 1986
- Occupier’s Liability Act 1984
- Limitation Act 1980
- Civil Liability (Contribution) Act 1978
- Health and Safety at Work etc. Act 1974
- Civil Evidence Act 1968
- Occupier’s Liability Act 1957
- Law Reform (Contributory Negligence) Act 1945
WHAT IS TORT?
Tort is a civil wrong. The term “tort” derives from the Norman French word for “wrong”. Tort is concerned with the infringement of a right that results in a loss that gives rise to an action of damages. Where there is no direct contractual relationship between parties, tort can provide a remedy. Tort is separate from the law of contract. Tort covers a wide range of causes of action arising out of various aspects of everyday life, such as neighbour disputes, negligence, trespass and injuries to the person. An architect normally owes a contractual duty and a concurrent duty in tort to the client and to third parties.1 The types of tort most relevant to architects are:- Negligence;
- Nuisance;
- Public nuisance;
- Trespass.
1 Henderson v Merrett Syndicates [1995] 2 AC 145 at 194.LIMITATION
Key case
- Oxford Architects Partnership v Cheltenham Ladies College 2
2 [2006] EWHC 3156 (TCC).The law will not allow an action to remain in perpetuity. Under the Limitation Act 1980 claims for negligence in tort in respect of physical damage to property must be commenced within six years from the date when the claimant suffers damage (section 2) or, if later, within three years from the date when the claimant first knew about the damage and certain material facts about it (section 14A). Under the Limitation Act 1980, claims for negligence in tort in respect of personal injury or death must be commenced within three years from the date on which the cause of action accrued or, if later, the date of knowledge of the person injured (section 11(4)). This is subject to section 14B of the Limitation Act 1980 in which an action for damages for negligence shall not be brought after the expiration of 15 years from the date (or, if more than one, from the last of the dates) on which there occurred any act or omission that is alleged to constitute negligence.
eBook - ePub- Chris Monaghan(Author)
- 2015(Publication Date)
- Routledge(Publisher)
The difference between Tort Law and contract law is that in tort legal obligations arise irrespective of whether there is a contract between the claimant and defendant. This means that in contract law the parties will voluntarily contract and accept their obligations, whereas in tort the law imposes obligations that will be owed to others regardless of whether they have consented to them. That is not to say that the parties to a contract will have complete freedom to determine the extent of their obligations, as the law has restricted the freedom of contract by introducing rules on the validity of certain terms and by introducing mandatory obligations for particular types of contracts. The law of tort has developed to establish that a duty of care will be owed in different circumstances and seeks to regulate our conduct by imposing an obligation to avoid causing others loss. You will see how the different torts arise and how a business will need to understand first its legal obligations and thus try to avoid liability, and second the protection that is afforded to it by Tort Law.In this chapter we will consider how the material covered will relate to a fictional business, Temple, Strand & Holborn Ltd (TSH Ltd). TSH Ltd specialises in fitting out shops.Figure 5.1 Key torts covered in this chapterRemedies
Unlike contract law the aim of damages in Tort Law is to put the claimant back in the position she was in prior to the tort occurring. Damages are intended to be compensatory in nature. There are different types of damages available, depending on the circumstances of the claim. In addition to damages a claimant may seek the court to award an equitable remedy such as an injunction. Injunctions are awarded at the court’s discretion and are commonly sought in order to prevent a party from acting in a way that would amount to a civil wrong. For example, we will see below that the defendant could be liable where he passes off his goods as being associated with the claimants. An injunction could be awarded to prevent the defendant from selling these goods.Temporary pre-trial injunctions
A party can apply for an interlocutory injunction that is a temporary restraint to prevent another party from acting in a certain way until the trial. The test for whether such an injunction should be awarded by the court was established in American Cyanamid Co v Ethicon Ltd (No 1)
