Tort

Summary

A tort is a civil wrong[1] (other than breach of contract) that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. In some, but not all, civil and mixed law jurisdictions, the term delict is used to refer to this category of civil wrong, though it can also refer to criminal offences in some jurisdictions and tort is the general term used in comparative law.[a] The word tort stems from Old French via the Norman Conquest and Latin via the Roman Empire.[3] The word 'tort' was first used in a legal context in the 1580s,[b] although different words were used for similar concepts prior to this time.

Tort law involves claims in an action seeking to obtain a private civil remedy, typically monetary damages. A tort claim can include intentional infliction of emotional distress, negligence, financial loss, injury, invasion of privacy, and numerous other harms. Tort claims may be compared to criminal law, which deals with criminal wrongs that are punishable by the state. A wrongful act, such as an assault and battery, may result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which also provides civil remedies after breach of a duty that arises from a contract; but whereas the contractual obligation is one agreed to by the parties, obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.[citation needed] In both contract and tort, successful claimants must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty.[c][d]

BackgroundEdit

While tort or delictual law in civil law jurisdictions largely trace their origin to Roman law, a distinctive body of law arose in the common law world derived from customary English tort law. In civil law jurisdictions based on civil codes, both contractual and tortious or delictual liability is typically outlined in a civil code based on Roman Law principles. In Scots and Roman Dutch law, on the other hand, the situation is similar to tort law in common law jurisdictions in that rules regarding civil liability are established primarily by precedent and theory rather than an exhaustive code; however, like other civil law jurisdictions, the underlying principles are drawn from Roman law.

Legal injuries addressable under tort law are not limited to physical injuries and may include emotional, economic,[e] or reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise such varied topics as automobile accidents, false imprisonment, defamation, product liability, copyright infringement, and environmental pollution (toxic torts).

Modern torts are heavily affected by insurance and insurance law, as many cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with the insurance policy, a deep pocket limit, setting a ceiling on the possible payment.[5]

TerminologyEdit

The person who commits the act is called a tortfeasor. Although crimes may be torts, the cause of legal action in civil torts is not necessarily the result of criminal action; the harm in civil torts may be due to negligence, which does not amount to criminal negligence. The victim of the harm can recover their loss as damages in a lawsuit. To prevail, the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the proximate cause of the harm. Moreover, tort law differs from Criminal law, whilst both contain punitive elements, Tort law is known to be more vindicatory and 'compensatory'[3] by nature. 'The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another.'[6]

Common law jurisdictionsEdit

In the international comparison of modern tort law, common law jurisdictions based upon English tort law have foundational differences from civil law jurisdictions shaped by Roman law. The right of victims to receive redress was regarded by later English scholars as one of the rights of Englishmen.[7] Blackstone's Commentaries on the Laws of England, which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word tort in a few places.[7]

While individuals and corporations are typically only liable for their own actions, indirect liability for the tortious acts of others may arise due by operation of law, notably through joint and several liability doctrines as well as forms of secondary liability. Liability may arise through enterprise liability or, in product liability cases in the United States, market share liability. In certain cases, a person might hold vicarious liability for their employee or child under the law of agency through the doctrine of respondeat superior. For example, if a shop employee spilled cleaning liquid on the supermarket floor and a victim fell and suffered injuries, the plaintiff might be able to sue either the employee or the employer. 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. Generally, this follows: If you want something done properly, do it yourself; if you get someone else to do it for you, then take the risk of their mistakes.''[3]

Among common law countries today, there are significant differences in tort law. For example, outside the United States, legal fees of the winner are typically paid by the loser (the English rule versus the American rule of attorney fees) whereas, in most American jurisdictions, each party is responsible for its own fees. Common law systems include United States tort law, Australian tort law, Canadian tort law, Indian tort law, and the tort law of a variety of jurisdictions in Asia and Africa. The Scots law of delict, while based on a mixture of local precedent and Roman law, has both influenced and been influenced by English common law, with the Scottish case Donoghue v Stevenson forming the basis for product liability in the majority of jurisdictions within the Commonwealth of Nations. The Jewish law of rabbinic damages in Israel is another example although tort in Israeli law is largely based on English law, having been enacted by British Mandate of Palestine authorities in 1944 and taking effect in 1947. There is a more apparent split between the Commonwealth countries and the United States.[8]

Torts and crimes at common law originate in the Germanic system of compensatory fines for wrongs (OE unriht), with no clear distinction between crimes and other wrongs.[9] In Anglo-Saxon law, most wrongs required payment in money or in kind (bōt, literally 'remedy') to the wronged person or their clan.[10] Wīte (literally 'blame, fault') was paid to the king or holder of a court for disturbances of public order. Weregild, which was a murder fine based on a victim's worth, was intended to prevent blood feuds.[9] Some wrongs in later law codes were botleas 'without remedy' (e.g. theft, open murder, arson, treason against one's lord), that is, unable to be compensated, and those convicted of a botleas crime were at the king's mercy.[11] Items or creatures which caused death were also destroyed as deodands. Assessing intention was a matter for the court, but Alfred the Great's Doom Book did distinguish unintentional injuries from intentional ones, whereas culpability depended on status, age, and gender.

After the Norman Conquest, fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown.[12] The petty assizes (i.e. of novel disseisin, of mort d'ancestor, and of darrein presentment) were established in 1166 as a remedy for interference with possession of freehold land. The trespass action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. The plea arose in local courts for slander, breach of contract, or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made de cursu (available by right, not fee); however, it was restricted to interference with land and forcible breaches of the king's peace. It may have arisen either out of the "appeal of felony", or assize of novel disseisin, or replevin. Later, after the Statute of Westminster 1285, in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force.[9] As its scope increased, it became simply "action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case.[9]

In 1401, the English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle.[9] Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for common carrier, which arose around 1400, was also emphasised in the medieval period.[9] Unintentional injuries were relatively infrequent in the medieval period. As transportation improved and carriages became popular in the 18th and 19th centuries, however, collisions and carelessness became more prominent in court records.[9] In general, scholars of England such as William Blackstone took a hostile view to litigation, and rules against champerty and maintenance and vexatious litigation existed.[13] The restriction on assignment of a cause of action is a related rule based on public policy.

The United States has been perceived as particularly prone to filing tort lawsuits even relative to other common law countries, although this perception has been criticised and debated.[14] As of 1987, class actions were relatively uncommon outside of the United States.[14] As of 1987, English law was less generous to the plaintiff in the following ways: contingent fee arrangements were restricted, English judges tried more decisions and set damages rather than juries, wrongful death lawsuits were relatively restricted, punitive damages were relatively unavailable, the collateral source rule was restricted, and strict liability, such as for product liability, was relatively unavailable.[14] England's welfare state, such as free healthcare through National Health Service, may limit lawsuits.[14] On the other hand, as of 1987 England had no workers compensation system and lawsuits due to workplace injuries were relatively common and facilitated by trade unions, whereas in the United States the system of workers' compensation insurance provides for compensation an employee who is injured at work even if the employee was at fault for the injury, but otherwise prohibits most lawsuits against the employer (although lawsuits against third parties who are responsible for the injury, such as the manufacturer of a defective ladder on which the employee was injured) are permitted.[14] The United States also has faced a rise in no-fault insurance for automobile liability in several states.[14] In England, ombudsmen may also take cases which could alternatively become tort lawsuits.[14]

United States tort law was influenced by English law and Blackstone's Commentaries, with several state constitutions specifically providing for redress for torts[7] in addition to reception statutes which adopted English law. However, tort law was viewed[who?] as relatively undeveloped by the mid-19th century; the first American treatise on torts was published in the 1860s but the subject became particularly established when Oliver Wendell Holmes, Jr wrote on the subject in the 1880s.[7] Holmes' writings have been described as the "first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain",[15] although Holmes' summary of the history of torts has been critically reviewed.[16] The 1928 US case of Palsgraf v. Long Island Railroad Co. heavily influenced the British judges in the 1932 House of Lords case of Donoghue v Stevenson.

While Indian tort law is generally derived from English law, there are certain differences between the two systems. Indian tort law uniquely includes remedies for constitutional torts, which are actions by the government that infringe upon rights enshrined in the Constitution, as well as a system of absolute liability for businesses engaged in hazardous activity as outlined in the rule in M. C. Mehta v. Union of India. Similar to other common law jurisdictions, conduct which gives rise to a cause of action under tort law is additionally criminalised by the Indian Penal Code, which was originally enacted in 1860.[17] As a result of the influence of its relatively early codification of criminal law, the torts of assault, battery, and false imprisonment are interpreted by Indian courts and the courts of jurisdictions that were formerly part of the British Indian Empire (e.g. Pakistan, Bangladesh) and British colonies in South East Asia which adopted the Indian Penal Code (i.e. Singapore, Malaysia, and Brunei) with reference to analogous crimes outlined in the code. For instance, assault is interpreted in the context of s.351 per which the following criteria constitute assault:[18]

  • Making of any gesture or preparation by a person in the presence of another.
  • Intention or knowledge of likelihood that such gesture or preparation will cause the person present to apprehend that the person making it is about to use criminal force on him.

Similarly, battery is interpreted in the context of criminal force as outlined in s.350.[19][f] An area of tort unique to India is the constitutional tort, a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle.[21] In practice, constitutional torts in India serve the role served by administrative courts in many civil law jurisdictions and much of the function of constitutional review in other jurisdictions, thereby functioning as a branch of administrative law rather than private law. Rather than developing principles of administrative fairness as a distinct branch of law as other common law jurisdictions have, Indian courts have thus extended tort law as it applies between private parties to address unlawful administrative and legislative action.

Absolute liability, under the rule in M. C. Mehta v. Union of India, in Indian tort law is a unique outgrowth of the doctrine of strict liability for ultrahazardous activities. Under the precedent established in the English case of Rylands v Fletcher, upon which the Indian doctrine of absolute liability is based, anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own purposes anything likely to cause mischief if it escapes is answerable for all direct damage thereby caused.[22] While, in England and many other common law jurisdictions, this precedent is used to impose strict liability on certain areas of nuisance law[23] and is strictly "a remedy for damage to land or interests in land" under which "damages for personal injuries are not recoverable",[24] Indian courts have developed this rule into a distinct principle of absolute liability, where an enterprise is absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from the operation of hazardous activity.[25] This differs greatly from the English approach as it includes all kinds of resulting liability, rather than being limited to damage to land.[25]

Within Canada's common law provinces, there is currently no consistent approach to the tort of invasion of privacy. Four provinces (British Columbia,[26] Manitoba,[27] Newfoundland[28] and Saskatchewan[29]) have created a statutory tort. Ontario has recognised the existence of the tort of "intrusion upon seclusion",[30] which has also been held to exist under tort law in the United States. British Columbia, on the other hand, has held that the tort does not exist in that province under the common law.[31]

Like the United Kingdom and British Columbia,[31] but unlike Ontario[30] and most jurisdictions in the United States, Indian tort law does not traditionally recognise a common law tort of invasion of privacy or intrusion on seclusion.[32] Nevertheless, there is a shift in jurisprudence toward recognising breech of confidentiality as an actionable civil wrong.[33] Proponents of protection for privacy under Indian tort law argue that “the right to privacy is implicit” in Article 21 of the Constitution of India, which guarantees protections for personal liberties.[32] Despite the lack of a tort addressing violations of privacy by private individuals, the Supreme Court recognised privacy as a constitutional right in 2017. Similarly, neither intentional infliction of emotional distress (IIED) nor negligent infliction of emotional distress (NIED) is recognised as a tort in Indian jurisprudence.[34] While claims seeking damages for infliction of emotional distress were historically an accessory claim in a tort action alleging another distinct tort, the doctrine has evolved in North America into a stand-alone tort while English jurisprudence has evolved to typically recognise only recognised psychiatric injuries as grounds for compensation.[34] Indian courts, while recognising the infliction of emotional distress regardless of intention as an actionable wrong in matrimonial disputes,[35] typically follow the English approach, although case law from both the United Kingdom and the North America is frequently employed by judges ruling on cases in which damages for mental distress are sought.[34]

When comparing Australia and the United States, Australia's tort law is similarly state law; however, there is a federal common law for torts unlike the United States. The influence of United States law on Australia has been limited. However, United States law may have influenced Australia's development of strict liability claims for products indirectly through legislation affected by European Union, and in the 1990s class actions were introduced in Australia.[8] Australia has universal healthcare and 'welfare state' systems which relieve injured persons (and others) from having to pay their medical expenses and also limit lawsuits.[8]

In New Zealand, the tort system for the majority of personal injuries was scrapped with the establishment of the Accident Compensation Corporation, a universal system of no-fault insurance.[8] The rationale underlying New Zealand's elimination of personal injury torts was securing equality of treatment for victims regardless of whether or the extent to which they or any other party was at fault.[36] This was the basis for much of Professor Patrick Atiyah's scholarship as articulated in Accidents, Compensation and the Law (1970). Originally his proposal was the gradual abolition of tort actions, and its replacement with schemes like those for industrial injuries to cover for all illness, disability and disease, whether caused by people or nature. In addition to the development of the Accident Compensation Corporation to eliminate personal injury lawsuits, the tort system for medical malpractice was scrapped in New Zealand, both following recommendations from the Royal Commission in 1967 for 'no fault' compensation scheme (see The Woodhouse Report).[36]

In the case of the United States, a survey of trial lawyers identified several modern innovations that developed after the divergence of English and American tort law, including strict liability for products based on Greenman v. Yuba Power Products, the limitation of various immunities (e.g. sovereign immunity, charitable immunity), comparative negligence, broader rules for admitting evidence, increased damages for emotional distress, and toxic torts and class action lawsuits. However, there has also been a reaction in terms of tort reform, which in some cases have been struck down as violating state constitutions, and federal preemption of state laws.[37]

Scots and Roman Dutch lawEdit

Scots private law has a 'mixed' character, blending together elements borrowed from Civil law and Common law, as well as indigenous Scottish developments. Similarly Roman Dutch law is an uncodified, scholarship-driven, and judge-made legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. In both legal systems, when applied in English speaking countries, the term delict is used to refer to tortious liability (unlike, for instance, in Spain where the cognate of the term delict refers to a criminal offence). Unlike in systems based on civil codes or on the English common law, Scots and Roman Dutch law operate on broad principles of liability for wrongdoing: 'there is no such thing as an exhaustive list of named delicts in the law of Scotland. If the conduct complained of appears to be wrongful, the law of Scotland will afford a remedy even if there has not been any previous instance of a remedy being given in similar circumstances'.[38] In South Africa and neighbouring countries, the Roman Dutch law of delict is in force, having been preserved after the United Kingdom annexed Dutch settlements in South Africa and spread as neighbouring British colonies adopted South African law via reception statutes.

Other jurisdictionsEdit

ChinaEdit

Civil and criminal law were not clearly delineated in Ancient Chinese law as they are in modern legal systems. Therefore, while Tort Law was not a distinct area of law, concepts familiar to tort law were present in the criminal laws.[39] However, by the late feudalism period, personal injury and property damage torts were mostly focused on compensation.[40]

The earliest "tort case" known from Ancient China is from the Zhou dynasty. During a famine one person robbed another's barn by sending his slave to steal the grain. He was sued and the court ordered double the original grain restored to the victim to compensate the damages.[41] The Qin Code made some changes to tort liabilities introducing the concept of subjective fault (fault liability). In a case where one person borrows farm equipment, compensation would be required for damage to the equipment if the damage is caused by the condition of the equipment when it was borrowed.[41] In addition to fault liability, some defences were developed. A person would not be liable if public property were damaged by fire or other natural forces outside the person's control. There was no liability for killing livestock, if the livestock was about to hurt someone.[41]

In contemporary China, there are four distinct legal systems in force: Portuguese civil law in Macau, common law in Hong Kong, a German-style civil law system adopted by the Republic of China following Japan's model, and a primarily civil law system in the mainland. In 2021, the mainalnd adopted the Civil Code of the People's Republic of China (CCPRC), Book Seven of which is titled "Tort Liability" and codifies a variety of torts, providing that an individual "who through his fault infringes upon another person’s civil-law rights and interests shall bear tort liability".[42] Book Seven outlines seven distinct categories of torts:

  • Product Liability (Chapter IV)
  • Liability for Motor Vehicle Traffic Accidents (Chapter V)
  • Liability for Medical Malpractice (Chapter VI)
  • Liability for Environmental Pollution and Ecological Damage (Chapter VII, comparable to toxic torts in common law jurisdictions)
  • Liability for Ultra-hazardous Activities (Chapter VIII, essentially codifying the common law doctrine of the same name)
  • Liability for Damage Caused by Domesticated Animals (Chapter IX)
  • Liability for Damage Caused by Buildings and Objects (Chapter X)

In areas administered by the Republic of China[g], the legislative basis of tort law is the Civil Code of the Republic of China[43] whose legal system was modelled after the Japanese Six Codes system, which itself was primarily based on the German pandectist approach to law.[44] If a person has wrongfully damaged to the body, health, reputation, liberty, credit, privacy or chastity of another, or to another's personality in a severe way, the injured person may claim a reasonable compensation in money even if such injury is not a purely pecuniary loss. If it was reputation that has been damaged, the injured person may also claim the taking of proper measures for the rehabilitation of his reputation. A person who, intentionally or negligently, has wrongfully damaged the rights of another is bound to compensate him for any injury arising therefrom. The same rule shall be applied when the legal injury is done intentionally in a manner against the rules of morals. A person, who violates a statutory provision enacted for the protection of others and therefore prejudice to others, is bound to compensate for the injury, except no negligence in his act can be proved. If several persons have wrongfully damaged the rights of another jointly, they are jointly liable for the injury arising therefrom. The same rule shall be applied even if which one has actually caused the legal injury cannot be sure. Instigators and accomplices are deemed to be joint tortfeasors.[43] Unless otherwise provided by the act or by the contract, the compensation shall be limited to the injury actually suffered and the interests which have been lost. Interests which could have been normally expected are deemed to be the interests which have been lost, according to the ordinary course of things, the decided projects, equipment, or other particular circumstances. A person who has wrongfully caused the death of another shall also be bound to make compensation for the injury to any person incurring the medical expenses, increasing the need in living, or incurring the funeral expenses. If the deceased was statutorily bound to furnish maintenance to a third party, the tortfeasor shall also make compensation to such third party for any injury arising therefrom. In case of death caused by a wrongful act, the father, mother, sons, daughters and spouse of the deceased may claim for a reasonable compensation in money even if such injury is not a purely pecuniary loss.[43]

JapanEdit

Like the French Civil Code, the Japanese Civil Code only has a single provision on tort liability.[45] Article 709 of the Civil Code states: "A person who intentionally or negligently violates the rights of others shall be liable for the loss caused by the act."[45] Japanese tort law was thus gradually developed largely based on case law, including cases on pollution.[46] Statutes outside the Civil Code also regulate specific types of torts, such as the Law on the Compensation of Losses arising from Car Accidents enacted in 1955, the 1973 Law on the Remedies of Harm Caused to Human Health by Pollution, and the 1994 Law on Product Liability.[45]

In a 1990 article,[47] Takao Tanase posited that the calculated structuring of governmental and legal processes, not a cultural propensity toward harmonious social relations, accounted for the persistently low litigation rate in Japan.[48] In Japan in 1986, fewer than 1% of automobile accidents involving death or an injury resulted in litigation, compared to 21.5% in the United States. The litigation rate was low, Tanase said, because Japan provides non-litigious methods of assessing fault, advising victims, determining compensation, and ensuring payment.[47] Non-litigious dispute resolution mechanisms, mediation services, consultation centres operated by governments, the bar association, and insurance companies. The Japanese judiciary also works hard at developing clear, detailed rules that guarantee virtually automatic, predictable, moderate compensation for most accident victims. This contrasts with the tort system in common law jurisdictions, where the legal rules concerning both liability and general damages (i.e. non-economic loss) are stated in general terms, leaving a great deal to the judgment of constantly rotating lay juries—which in turn makes courtroom outcomes variable and difficult to predict.[47]

The result was a system that is vastly more efficient and reliable in delivering compensation than in common law jurisdictions. Tanase estimated that legal fees comprised only 2% of the total compensation paid to injured persons. In the United States in the late 1980s, according to two big studies of motor vehicle accident tort claims (not just lawsuits), payments to lawyers equaled 47% of the total personal injury benefits paid by insurers. This expense drives up the cost of insurance to the point that huge numbers of drivers are uninsured or under-insured, which means that victims of their negligent driving will get little or nothing from the tort system.[47]

European UnionEdit

The legal framework of the European Union consists of the treaties, regulations, directives and case law. Specifically in the area of tort law, a number of rules can be found in tort law directives.[49] Examples of directives include the Product Liability Directive and the Directive on Unfair Commercial Practices. A directives can be either a maximum harmonisation directives, which means member states are not allowed to deviate from it, or a minimum harmonisation directive, which only provide a general framework.[50] Article 288 of the TFEU, however, concedes that a directive 'shall be binding as to the result to be achieved, upon each member State to which it is addressed, but shall leave to national authorities the choice of form and methods'. Liability can also be based on the violation of community provisions. Article 288 of the TFEU explicitly regulates the liability of Community Institutions for damage caused by the breach of Union Law. This article does not give precise liability rules but refers to the general principles common to the laws of Member States. It does not mean that 'the Community judicature must search for a solution favoured by a majority of Member States …. It simply means that the Community judicature must look to the national systems for inspiration in devising a regime of non-contractual liability adapted to the specific circumstances of the Community.'[49]

The development of a general principle of liability for breach of Union Law is also in the Francovich case law of the ECJ. In this 1991 decision, the ECJ acknowledged liability of the Member States towards individuals for violation of Union law as being inherent in the system of the Treaty and being necessary for the effectiveness of Community of law.[51] On the basis of the general principles to which Article 288 refers, the ECJ developed three requirements for liability:

  1. The rule of law infringed must be intended to confer rights on individuals
  2. The breach must be sufficiently serious
  3. There must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.

The fulfilment of these requirements is sufficient for a right to compensation, which is directly based in Union Law.

Within the European Union and neighbouring countries, the European Group on Tort Law promotes the harmonisation of tort law within the region. The group meets regularly to discuss fundamental issues of tort law liability as well as recent developments and the future directions of the law of tort. The Group has founded the European Centre of Tort and Insurance Law in Vienna. The Group has drafted a collection of Principles of European Tort Law similar to the Principles of European Contract Law drafted by the European Contract Law Commission.[52] The Principles of European Tort Law are a compilation of guidelines by the European Group on Tort Law aiming at the harmonisation of European tort law. They are not intended to serve as a model code, even though their wording may resemble statutory texts. At least with respect to form and structure, they resemble an American Restatement of the Law. The Principles of European Tort Law are intended to serve as a common framework for the further development of national tort laws and also of singular European legislation, which could avoid a further drifting-apart of piecemeal rule-making both on a national and on the European level.

Conflict of lawsEdit

In certain instances, different jurisdictions' law may apply to a tort, in which case rules have developed for which law to apply. In common law jurisdictions, the traditional approach to determine which jurisdiction's tort law is applicable is the proper law test. When the jurisdiction is in dispute, one or more state laws will be relevant to the decision-making process. If the laws are the same, this will cause no problems, but if there are substantive differences, the choice of which law to apply will produce a different judgment. Each state therefore produces a set of rules to guide the choice of law, and one of the most significant rules is that the law to be applied in any given situation will be the proper law. This is the law which seems to have the closest and most real connection to the facts of the case, and so has the best claim to be applied. The general rule is that the proper law is the primary system of law which governs most aspects of the factual situation giving rise to the dispute. This does not imply that all the aspects of the factual circumstances are necessarily governed by the same system of law, but there is a strong presumption that this will be the case (see characterisation). Traditionally, common law jurisdictions such as England required "double actionability" for torts, effectively requiring the conduct to be considered tortious both in England and in the jurisdiction whose law is to apply under the proper law rule.

Over time, the proper law test has been refined or replaced in many common law jurisdictions either with reference to all instances of conflict of laws or specifically in the case of tort law. In English law, with the exception of defamation which continues to apply the proper law test, s10 Private International Law (Miscellaneous Provisions) Act 1995 abolishes the "double actionability" test, and s11 applies the lex loci delicti rule subject to an exception under s12 derived from Boys v Chaplin [1971] AC 356 and Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190. Thus, it is no longer necessary for the case to be based on a tort actionable in England. The English courts must apply wider international tests and respect any remedies available under the "Applicable Law" or lex causae including any rules on who may claim (e.g. whether a personal representative may claim for a fatal accident) and who the relevant defendant may be (i.e. the English court would have to apply the applicable law's rules on vicarious liability or the identity of an "occupier" of land). The first step is for the court to decide where the tort occurred, which may be complicated if relevant events took place in more than one state. s11(2) distinguishes between:

  • actions for personal injuries: it is the law of the place where the individual sustained the injury;
  • damage to property: it is the law of the place where the property was damaged;
  • in any other case, it is the law of the place in which the most significant element or elements occurred.

In exceptional circumstances, the lex loci delicti rule is displaced in favour of another law, if the "factors relating to the parties" or "any of the events which constitute the tort" show that this other law will be substantially more appropriate.

Within the European Union, there have been efforts to harmonise conflict of tort laws rules between member states. Under Article 3 of the proposed Rome II Regulation on the Law Applicable to Non-Contractual Obligations (22 July 2003), there would be a general presumption that the lex loci delicti will apply subject to either: an exception in Paragraph 2 for the application of the law to any common habitual residence between the parties, or an exception in Paragraph 3 for cases in which "the non-contractual obligation is manifestly more closely connected with another country. . ." the so-called proximity criterion. In effect, where other specific rules of the regulation are not applied, these general rules replicate the effect of the English rules outlined above. In product liability cases, Article 4 selects the law of the injured party's habitual residence if the product was marketed there with the consent of the defendant. The rationale is that if a defendant knows of, and is benefiting from, sales in the plaintiff's state, the choice of that state's law is reasonable. Article 6 specifies the lex fori for actions arising out of breach of privacy or defamation, a rule that may increase the risk of forum shopping. Whether the plaintiff has any right of reply in a defamation case will be determined under the law of the state where the broadcaster or publisher is established. In cases where contract and tort issues overlap, Article 9 states that the same law should govern both sets of issues, thus applying contractual choice of law clauses to related tort litigation.

In the United States, where each state constitutes a distinct jurisdiction for the purposes of tort law, different jurisdictions take different approaches to conflict of laws and rules regarding conflict of tort laws apply equally to conflicts between the tort laws of two American states and conflicts between an American state and a foreign jurisdiction. Until the 20th century, traditional choice of law rules were based on the principle that legal rights vest automatically at legally significant and ascertainable times and places. For example, a dispute regarding property would be decided by the law of the place the property was located.[53] Disputes in tort would be decided by the place where the injury occurred.[54] During the first half of the 20th century, the traditional conflict of laws approach came under criticism from some members of the American legal community who saw it as rigid and arbitrary; the traditional method sometimes forced application of the laws of a state with no connection to either party, except that a tort or contract claim arose between the parties in that state.[55] This period of intellectual ferment (which coincided with the rise of the legal realism movement) introduced a number of innovative approaches to American choice of laws jurisprudence:[56]

  • Renvoi: Under this approach, courts look for a provision in the law of the choice of law state that permits the court to use the lex fori, i.e. law of the forum state.
  • Significant contacts test: This test evaluates the contacts between the states and each party to the case, and determines which state has the most significant contacts with the litigation as a whole.
  • Seat of the relationship test: This test specifically examines the relationship between the parties to the lawsuit, and uses the law of the state in which the relationship between the parties was most significant.
  • Balance of interests test: This test examines the interests of the states themselves, and the reasons for which the laws in question were passed. It is the brainchild of University of Chicago law professor Brainerd Currie, who outlined the doctrine in a series of articles from the 1950s and 60s. Under this form of analysis, the court must determine whether any conflict between the laws of the states is a true conflict, a false conflict, or an unprovided-for case. A true conflict occurs when one state offers a protection to a particular party that another state does not, and the court of the state that offers no such protection is asked to apply the law of the state offering the protection. In such a case, if the interests are balanced, the law of the forum will prevail. A false or apparent conflict occurs when the state offering the protection has no actual interest in the endorsement of that protection against the particular parties to the case. In this case, since neither party is from the forum state, it has no interest in the application of the law to these persons. An unprovided-for case is one in which each party is seeking to apply the law of the other state. In such a case, the law of the forum will prevail.
  • Comparative impairment test: This test asks which state's policies would suffer more if their law was not applied. This is similar to interest analysis, in that the interests of the state are taken into account - however, this test does not look to see which state benefits more from the application of its laws, but rather for situations in which the other state's interests will actually be harmed by the application of the laws of the forum state.
  • Better rule test: The better rule test presupposes that, between the laws presented by the two or more states in which the action arose, there is one set of laws which is empirically better, and which is therefore more meritorious of application by the forum court. Use of the "better rule" test, like renvoi, is frowned upon because it appears to be little more than a gimmick to allow a court to apply the law of its own state.

Remedies and defencesEdit

In common, civil, and mixed law jurisdictions alike; the main remedy available to plaintiffs under tort law is compensation in damages or money. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction, such as in the English case Miller v Jackson (1977). This means a command, for something other than money by the court, such as restraining the continuance or threat of harm. 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.[57] At the same time, each legal system provides for a variety of defences for defendants in tort claims which, partially or fully, shield defendants from liability. In a limited range of cases varying between jurisdictions, tort law will tolerate self-help as an appropriate remedy for certain torts. One example of this is the toleration of the use of reasonable force to expel a trespasser, which is typically also a defence against the tort of battery.

Common lawEdit

The remedies and defences available in common law jurisdictions are typically similar, deriving from judicial precedent with occasional legislative intervention. Compensation by way of damages is typically the default remedy available to plaintiffs, with injunctions and specific performance being relatively rare in tort law cases. Relatively uniquely for a common law jurisdiction, Singapore's Community Disputes Resolution Act 2015 (CDRA) alters the common law by codifying a statutory tort of "interference with enjoyment or use of place of residence" and provides for a variety of remedies beyond damages, ranging from injunctions and specific performance to court-ordered apologies.[58] Where a court order providing for a remedy other than damages is awarded under the CDRA is violated, sections 5-8 of the act require that the plaintiff apply for a 'special direction' to be issued in order to enforce the original remedy and section 9 provides that failure to comply with a special direction is grounds for the court to issue an order excluding the tortfeasor from their residence.[58] Aside from legislatively created remedies such as the CDRA, courts in common law jurisdictions will typically provide for damages (which, depending on jurisdiction, may include punitive damages), but judges will issue injunctions and specific performance where they deem damages not to be a sufficient remedy. Legislatures in various common law jurisdictions have curtailed the ability of judges to award punitive or other non-economic damages through the use of non-economic damages caps and other tort reform measures.

Apart from proof that there was no breach of duty (in other words, that a tortious act was not committed in the first place), there are three principal defences to tortious liability in common law jurisdictions:

  • Consent and warning: Typically, a victim cannot hold another liable if the victim has implicitly or explicitly consented to engage in a risky activity. This is frequently summarised by the maxim "volenti non fit injuria" (Latin: "to a willing person, no injury is done" or "no injury is done to a person who consents"). In many cases, those engaging in risky activities will be asked to sign a waiver releasing another party from liability. For example, spectators to certain sports are assumed to accept a risk of injury, such as a hockey puck or baseball striking a member of the audience. Warnings by the defendant may also provide a defence depending upon the jurisdiction and circumstances. This issue arises, for example, in the duty of care that landowners have for guests or trespasses, known as occupiers' liability.
  • Comparative or contributory negligence: If the victim has contributed to causing their own harm through negligent or irresponsible actions, the damages may be reduced or eliminated entirely.
    • Contributory negligence: The English case Butterfield v. Forrester (1809) established this defence. In England, this "contributory negligence" became a partial defence, but in the United States, any fault by the victim completely eliminated any damages.[59] This meant that if the plaintiff was 1% at fault, the victim would lose the entire lawsuit.[59] This was viewed as unnecessarily harsh and therefore amended to a comparative negligence system in many states; as of 2007 contributory negligence exists in only a few states such as North Carolina and Maryland.[59]
    • Comparative negligence: In comparative negligence, the victim's damages are reduced according to the degree of fault. Comparative negligence has been criticised as allowing a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant. Economists have further criticised comparative negligence as not encouraging precaution under the calculus of negligence. In response, many states now have a 50% rule where the plaintiff recovers nothing if the plaintiff is more than 50% responsible.
  • Illegality: If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. The legal maxim ex turpi causa non oritur actio, Latin for "no right of action arises from a despicable cause". 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.
  • Other defences and immunities:

Other jurisdictionsEdit

Mainland ChinaEdit

While Book Seven (titled "Tort Liability") of the CCPRC, which is influenced by a variety of common law and civil law jurisdictions, codifies the torts which exist under the law of Mainland China,[42] Book One of the CCPRC provides a comprehensive list of remedies for torts in Article 179:[2]

  (1) cessation of the infringement;
  (2) removal of the nuisance;
  (3) elimination of the danger;
  (4) restitution;
  (5) restoration;
  (6) repair, redoing or replacement;
  (7) continuance of performance;
  (8) compensation for losses;
  (9) payment of liquidated damages;
  (10) elimination of adverse effects and rehabilitation of reputation; and
  (11) extension of apologies.

These remedies apply to all categories of torts outlined in Book Seven or by any other provision of law. To this end, Book Seven specifically provides that "where a tortious act endangers another person’s personal or property safety, the infringed person has the right to request the tortfeasor to bear tort liability such as cessation of the infringement, removal of the nuisance, or elimination of the danger".[42]

Book One additionally provides that force majeure[h] constitutes a valid defence for tort liability while Article 184 in that book is a Good Samaritan law eliminating liability under tort law for individuals acting to save or rescue a potential plaintiff.[2] Article 1176 in Book Seven provides a partial defence where an injury is caused in the course of a sport in which the plaintiff was consensually participating.[42]

Roman Dutch lawEdit

In jurisdictions applying the Roman Dutch law of delict, there are three main remedies available to plaintiffs:

The various delictual actions are not mutually exclusive. It is possible for a person to suffer various forms of harm at the same time, which means that a person may simultaneously claim remedies under more than one action.[60]

There are five essential elements for liability in terms of the actio legis Aquiliae:

  1. The harm must take the form of patrimonial loss.
  2. The conduct must take the form of a positive act or an omission or statement.
  3. The conduct must be wrongful: that is to say, objectively unreasonable and without lawful justification.[61]
  4. One must be at fault, and one's blameworthiness must take the form of dolus (intention) or culpa (negligence). One must, however, be accountable for one's conduct before one can be blameworthy.
  5. There must be causation both factual and legal. For the former, the conduct must have been a sine qua non of the loss; for the latter, the link must not be too tenuous.

There is a distinction between defences aimed at the wrongfulness element and defences which serve to exclude fault. Grounds of justification may be described as circumstances which occur typically or regularly in practice, and which indicate conclusively that interference with a person's legally-protected interests is reasonable and therefore lawful. They are practical examples of circumstances justifying a prima fade infringement of a recognised right or interest, according to the fundamental criterion of reasonableness. They are another expression of the legal convictions of the society.

Consent to injury, or Volenti non fit injuria, is a full defence; if successful, there is no delict. As a general defence, it can take two forms:

  1. consent to a specific harmful act of the defendant; and
  2. assumption of the risk of harm connected with the activity of the defendant.

There are five requirements for the defence of consent:

  1. capacity;
  2. knowledge and appreciation of harm; and
  3. consent, or free and voluntary assumption of risk. In addition,
  4. the consent must not have been socially undesirable—not seduction, or murder for insurance purposes; and
  5. the consent must not have been revoked.

Necessity is conduct directed at an innocent person as a result of duress or compulsion, or a threat by a third party or an outside force. Private defence (or self-defence) is conduct directed at the person responsible for the duress or compulsion or threat. There is, therefore, an important distinction between the two. In cases of necessity and private defence, the question is this: Under which circumstances would the legal convictions of the community consider it reasonable to inflict harm to prevent it? The test is objective. It requires a balancing of the parties' and of society's interests. The role of the person against whom the defensive conduct is directed is an important factor in determining whether defence or necessity is being pled. An act of necessity is calculated to avert harm by inflicting it on an innocent person, whereas an act of defence is always directed at a wrongdoer. A person acts in "private defence," and therefore lawfully, when he uses force to ward off an unlawful attack against his or someone else's property or person. A person acts in "self-defence" when he defends his own body against unlawful attack by someone else. One therefore cannot invoke the justification of self-defence when acting in the interests of another person, but it is possible to invoke the justification of private defence when acting in one's own interests. Conduct will be justified as an act in private defence or self-defence if it is

  • lawful;
  • directed against a wrongdoer; and
  • for the protection of the actor's or a third party's interest, which is threatened or attacked by the wrongdoer.

The violence used in defence must not exceed what is reasonably necessary to avert the threatened danger:

  • The attack must have constituted a real or imminent infringement of the defendant's rights.
  • The attack must have been unlawful.
  • The defensive conduct must have been directed at the attacker.
  • The defence must have been necessary to protect the threatened interests.
  • It must have been reasonable: An act of defence is justified only if it was reasonably necessary for the purpose of protecting the threatened or infringed interest.

An act of necessity may be described as lawful conduct directed against an innocent person for the purpose of protecting an interest of the actor or of a third party (including the innocent person) against a dangerous situation, which may have arisen owing to the wrongful conduct of another or the behaviour of an animal, or through natural forces. Two types of emergency situations may be found:

  1. those caused by humans; and
  2. those caused by natural forces.

Theory and reformEdit

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.[62] British scholar Glanville Williams notes four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.[63]

William M. Landes, Richard A. Posner, and Steven Shavell have initiated a line of research in the law and economics literature that is focused on identifying the effects of tort law on people's behavior.[64][65] These studies often make use of concepts that were developed in the field of game theory.[66] Law and economic scholars characterise law in terms of incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. Ronald Coase, a principal proponent, argued in The Problem of Social Cost (1960) that the aim of tort law, when transaction costs are high, should be to reflect as closely as possible the allocation of risk and liability at which private parties arrive when transaction costs are low.[67]

Since the mid-to-late 20th century, calls for reform of tort law have come from various perspectives. Some calls for reform stress the difficulties encountered by potential claimants. For example, because not all people who have accidents can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery".[68] Consequently, in New Zealand, the government in the 1960s established a no-fault system of state compensation for accidents. In the 1970s, Australia[69] and the United Kingdom drew up proposals for similar no-fault schemes[70] but they were later abandoned.

A wide variety of tort reforms have been implemented or proposed in different jurisdictions, each attempting to address a particular deficiency perceived in the system of tort law. Generally, these can be broken down into two categories: reforms limiting damages recoverable by a plaintiff and procedural reforms limiting the ability of plaintiffs to file lawsuits. A large portion of tort reforms seek to limit the damages a plaintiff can be awarded. The rationale underlying these reforms is that, by limiting the profitability of tort lawsuits to plaintiffs, they will reduce the incentive to file frivolous lawsuits. There are several varieties of reforms to the system of damages:

  • Non-economic damages caps place limits on noneconomic damages and collecting lawsuit claim data from malpractice insurance companies and courts in order to assess any connection between malpractice settlements and premium rates.[71] Such caps can be general or limited to a particular category of cases.[i]
  • Punitive damages caps limit the amount of punitive damages awardable to a plaintiff. In most civil law jurisdictions, punitive damages are unavailable and are considered contrary to public policy since the civil justice system in many countries does not accord defendants the procedural protections present in the criminal justice system thus penalising an individual without allowing them the ordinary procedural protections that are present in a criminal trial. The rationale for restricting punitive damages is that such damages encourage a vindictive, revenge seeking state of mind in the claimant and society more generally. In the UK, Rookes v Barnard[72] limited the situations in which punitive damages can be won in tort actions to where they are expressly authorised by a statute, where a defendant's action is calculated to make profit, or where an official of the state has acted arbitrarily, oppressively or unconstitutionally. In the United States, though rarely awarded in tort cases, punitive damages are available, and are sometimes quite staggering when awarded.[j]
  • Limits on damages for pain and suffering are another category of tort reform. While tort compensation easily applies to property damage, where the replacement value is a market price (plus interest), but it is difficult to quantify the injuries to a person's body and mind. There is no market for severed legs or sanity of mind, and so there is no price which a court can readily apply in compensation for the wrong. Some courts have developed scales of damages awards, benchmarks for compensation, which relate to the severity of the injury. For instance, in the United Kingdom, the loss of a thumb is compensated at £18,000, for an arm £72,000, for two arms £150,000, and so on,[75] but while a scale may be consistent, the award itself is arbitrary. Patrick Atiyah has written that one could halve, or double, or triple all the awards and it would still make just as much sense as it does now.[76]
  • Another reform to compensation, in jurisdictions where it is not already the norm, is to implement the English rule whereby the losing party to a case covers the victorious party's legal costs. In Commonwealth countries as well as certain American states, the losing party must pay for the court costs of the winning party.[77] The English rule Is also a prevailing norm in European civil law jurisdictions.[78] For example, after authors Michael Baigent and Richard Leigh lost their plagiarism litigation over The Da Vinci Code in a British court, they were ordered to pay the defendants' $1.75 million in attorneys' fees. The "American rule" differs; in most cases, each party bears its own expense of litigation. Supporters of tort reform argue that loser-pays rules are fairer, would compensate winners of lawsuits against the costs of litigation, would deter marginal lawsuits and tactical litigation, and would create proper incentives for litigation, and argue for reforms that would require compensation of winning defendants some or all the time.[79] Certain proposed or implemented tort reforms adopt the English rule if the respondent should prevail but retain the American rule otherwise (e.g. California's special motion to strike in defamation suits).

In addition to reforms aimed at limiting plaintiff's abilities to claim particular categories of compensation, tort reform measures aimed at reducing the prevalence of lawsuits for negligence, the most commonly alleged tort, aim to revise the doctrine of comparative negligence. Comparative negligence is a partial legal defence that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury,[80] which progressively displaced the erstwhile traditional doctrine of contributory negligence over the twentieth century which had precluded any damages being awarded in cases in which the plaintiff was deemed to be even partially at fault. Under standard or "pure" comparative negligence, a plaintiff can seek damages regardless of the portion of liability they bear, even where they are found to be more at fault than the respondent.[81] As a tort reform measure aimed at combatting the perceived unfairness of allowing a party to seek extra-contractual damages where they are primarily at fault, many common law jurisdictions have adopted a "modified" doctrine of comparative negligence in which a party may only recover damages if it bears less than half the liability or if the other party bears more than half the liability.[82] More radically, the American states of Alabama, Maryland, North Carolina, and Virginia continue to use contributory negligence, thus precluding a party who is even partly at fault from recovering damages for negligence.[83]

The abolition of the collateral source rule (i.e. the principle that a respondent in a tort action cannot use the fact that a plaintiff has already been compensated as evidence[84]) is another common proposal of tort reform advocates in jurisdictions where the rule exists. They argue that if the plaintiff's injuries and damages have already been compensated, it is unfair and duplicative to allow an award of damages against the respondent.[85] As a result numerous states have altered or partially abrogated the rule by statute.[86][84]

Regulation of contingent fees; as well as rules regarding barratry, champerty and maintenance, or litigation funding more generally; is another aspect of procedural policies and reforms designed to reduce the number of cases filed in civil court.

In common law jurisdictions, which typically rely on judicial precedent for the creation and development of new torts, the creation of statutory torts is a means through which legislatures reform and modify tort law. 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. For example, the European Union's Product Liability Directive imposes strict liability for defective products that harm people; such strict liability is not uncommon although not necessarily statutory. As another example, in England common law liability of a landowner to guests or trespassers was replaced by the Occupiers' Liability Act 1957; a similar situation occurred in the U.S. State of California in which a judicial common law rule established in Rowland v. Christian was amended through a 1985 statute.[87] Statutory torts also spread across workplace health and safety laws and health and safety in food. In some cases federal or state statutes may preempt tort actions, which is particularly discussed in terms of the U.S. FDA Preemption;[88] although actions in the United States for medical devices are preempted due to Riegel v. Medtronic, Inc. (2008), actions for medical drugs are not due to Wyeth v. Levine (2009).

Comparison with other areas of lawEdit

Tort law is closely related to other areas of law, particularly contract and criminal law. On one hand, tort and contract law are typically regarded as the two primary fields within the law of obligations, with tort forming a catch-all category encompassing civil wrongs that arise by operation of law in contrast to breach of contract, which encompasses violations of obligations that are freely assumed by parties to a contract. On the other hand, both tort and criminal law aim to address wrongful conduct and often overlap such that conduct which gives rise to a claim under tort law may also give rise to a prosecution under criminal law.

Contract lawEdit

Tort is sometimes viewed as the causes of action which are not defined in other areas such as contract or fiduciary law.[89] However, tort and contract law are similar in that both involve a breach of duties, and in modern law these duties have blurred[89] and it may not be clear whether an action "sounds in tort or contract"; if both apply and different standards apply for each (such as a statute of limitations), courts will determine which is the "gravamen" (the most applicable). Circumstances such as those involving professional negligence[89] may involve both torts and contracts. The choice may affect time limits or damages, particularly given that damages are typically relatively limited in contract cases while in tort cases noneconomic damages such as pain and suffering may be awarded.[89] Punitive damages are relatively uncommon in contractual cases versus tort cases.[90] However, compensation for defective but not unsafe products is typically available only through contractual actions[89] through the law of warranty.

In the United Kingdom, plaintiffs in professional negligence cases have some degree of choice in which law while in commercial transactions contract law applies; in unusual cases, intangible losses have been awarded in contract law cases.[89]

The English case Hadley v. Baxendale (1854), which was adopted in the United States, split contract and tort damages by foreseeability of the damages when the contract was made.[91] In the United States, the pure economic loss rule was adopted to further prevent negligence lawsuits in breach of contract cases.[91] This "economic loss rule" was adopted by the Supreme Court of the United States East River Steamship Corp V Transamerica Delaval Inc. (1986) and expanded across the country in a non-uniform manner, leading to confusion.[92] Among other examples, the tort of insurance bad faith arises out of a contractual relationship, and "collateral torts" such as wrongful dismissal involving possible overlap with labour law contracts.[93]

Criminal lawEdit

There is some overlap between criminal law and tort. For example, in English law an assault is both a crime and a tort (a form of trespass to the person). 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). 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. This explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts. In early common law, the distinction between crime and tort was not distinct.[94]

The more severe penalties available in criminal law also means that it requires a higher burden of proof to be discharged than the related tort. As with other areas of private law, the burden of proof required in tort is balance of probabilities (or preponderance of the evidence in the United States) rather than beyond a reasonable doubt. Sometimes a claimant may prevail in a tort case even if the defendant who allegedly caused harm were acquitted in an earlier criminal trial. For example, O. J. Simpson was acquitted in criminal court of murder but later found liable for the tort of wrongful death.[95]

Both tort law and criminal law may impose liability where there is:

Under Indian tort law and in other jurisdictions which adopted a version of the 1860 Indian Penal Code, the torts of assault and battery are interpreted with reference to equivalent criminal offences under the Indian Penal Code.[20] Both areas of law also deter certain types of undesirable behaviour through liability. However, in Criminal law the term 'guilty' is used whereas in tort law this is not the case and 'liable' is used instead.[3]

Categories of torts in common law jurisdictionsEdit

Torts may be categorised in several ways, with a particularly common division between negligent and intentional torts. Quasi-torts are unusual tort actions. Particularly in the United States, "collateral tort" is used to refer to torts in labour law such as intentional infliction of emotional distress ("outrage");[96] or wrongful dismissal; these evolving causes of action are debated and overlap with contract law or other legal areas to some degree.[93]

In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, workers' compensation laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside the traditional common law torts. These are loosely grouped into quasi-torts or liability torts.[14]

NegligenceEdit

The tort of negligence is a cause of action leading to relief designed to protect legal rights[k] from actions which, although unintentional, nevertheless cause some form of legal harm to the plaintiff. In order to win an action for negligence, a plaintiff must prove: duty, breach of duty, causation, scope of liability, and damages. Further, a defendant may assert various defences to a plaintiff’s case, including comparative fault and assumption of risk. Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person. Although credited as appearing in the United States in Brown v. Kendall, the later Scottish case of Donoghue v Stevenson [1932] AC 562, followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions.[97] In Donoghue, Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence.

In most common law jurisdictions, there are four elements to a negligence action:[98]

  1. duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable care[l]
  2. breach: the defendant breaches that duty through an act or culpable omission
  3. damages: as a result of that act or omission, the plaintiff suffers an injury
  4. causation: the injury to the plaintiff is a reasonably foreseeable[m] consequence of the defendant's act or omission under the proximate cause doctrine.[n]

Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm.[103] Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages.[103] However, at their heart, the various definitions of what constitutes negligent conduct are very similar.

Depending on jurisdiction, product liability cases such as those involving warranties may be considered negligence actions or fall under a separate category of strict liability torts. Similarly, cases involving environmental or consumer health torts which other countries treat as negligence or strict liability torts are treated in India as absolute liability torts.

Intentional tortsEdit

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories:

An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy the intent requirement.[104] Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.

NuisanceEdit

"Nuisance" is traditionally used to describe an activity which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private nuisance) or the general public (public nuisance). The claimant can sue for most acts that interfere with their use and enjoyment of their land. In English law, whether activity was an illegal nuisance depended upon the area and whether the activity was "for the benefit of the commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet.[105] The case Jones v Powell (1629) provides an early example, in which a person's professional papers were damaged by the vapors of a neighboring brewery. Although the outcome of this case is unclear,[105] Whitelocke of the Court of the King's Bench is recorded as saying that since the water supply in area was already contaminated, the nuisance was not actionable as it is "better that they should be spoiled than that the commonwealth stand in need of good liquor".[citation needed]

In English law, a related category of tort liability was created in the case of Rylands v Fletcher (1868): strict liability was established for a dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. In Cambridge Water Co Ltd v Eastern Counties Leather plc (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs.[106] The Rylands rule remains in use in England and Wales. In Australian law, it has been merged into negligence.[107]

Economic tortsEdit

Economic torts[p] typically involve commercial transactions, and include tortious interference with trade or contract, fraud, injurious falsehood, and negligent misrepresentation. Negligent misrepresentation torts are distinct from contractual cases involving misrepresentation in that there is no privity of contract; these torts are likely to involve pure economic loss which has been less-commonly recoverable in tort. One criterion for determining whether economic loss is recoverable is the "foreseeability" doctrine.[108] The economic loss rule is highly confusing and inconsistently applied[109] and began in 1965 from a California case involving strict liability for product defects; in 1986, the U.S. Supreme Court adopted the doctrine in East River S.S. Corp. v. Transamerica Deleval, Inc.[92] In 2010, the supreme court of the U.S. state of Washington replaced the economic loss doctrine with an "independent duty doctrine".[110]

Economic antitrust torts have been somewhat submerged by modern competition law. However, in the United States, private parties are permitted in certain circumstances to sue for anticompetitive practices, including under federal or state statutes or on the basis of common law tortious interference, which may be based upon the Restatement (Second) of Torts §766.[111]

Negligent misrepresentation as tort where no contractual privity exists was disallowed in England by Derry v Peek [1889]; however, this position was overturned in Hedley Byrne v Heller in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant.[112] United States courts and scholars "paid lip-service" to Derry; however, scholars such as William Prosser argued that it was misinterpreted by English courts.[112] The case of Ultramares Corporation v. Touche (1932) limited the liability of an auditor to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s.[112] The Restatement (Second) of Torts expanded liability to "foreseeable" users rather than specifically identified "foreseen" users of the information, dramatically expanding liability and affecting professionals such as accountants, architects, attorneys, and surveyors.[112] As of 1989, most U.S. jurisdictions follow either the Ultramares approach or the Restatement approach.[112]

The tort of deceit for inducement into a contract is a tort in English law, but in practice has been replaced by actions under Misrepresentation Act 1967.[113] In the United States, similar torts existed but have become superseded to some degree by contract law and the pure economic loss rule.[114] Historically (and to some degree today), fraudulent (but not negligent[114]) misrepresentation involving damages for economic loss may be awarded under the "benefit-of-the-bargain" rule (damages identical to expectation damages in contracts[114]) which awards the plaintiff the difference between the value represented and the actual value.[114] Beginning with Stiles v. White (1846) in Massachusetts, this rule spread across the country as a majority rule with the "out-of-pocket damages" rule as a minority rule.[114] Although the damages under the "benefit-of-the-bargain" are described as compensatory, the plaintiff is left better off than before the transaction.[114] Since the economic loss rule would eliminate these benefits if applied strictly, there is an exception to allow the misrepresentation tort if not related to a contract.[114]

See alsoEdit

NotesEdit

  1. ^ For instance, despite the common belief that the term “tort” exclusively refers to civil liability in common law jurisdictions, Wikipedia has articles discussing conflict of tort laws, European tort law, and Tort Law in China, only using the term delict in articles about jurisdictions which specifically use the term to refer to torts (e.g. Scots Law of Delict and South African law of delict). Similarly, the English version of the Civil Code of the People's Republic of China, uses the term “tortfeasor” to refer to individuals who incur civil liability.[2]
  2. ^ The word is derived from Old French and Anglo-French "tort" (injury), which is derived from Medieval Latin tortum.[4]
  3. ^ Under the UK Contracts (Rights of Third Parties) Act 1999, a person may enforce a contract even when they are not a party to it.
  4. ^ If an employee injures himself in the course and scope of employment, he will be both tortfeasor and claimant under the rule of vicarious liability.
  5. ^ Pure economic loss is rarely recoverable.
  6. ^ "Whoever intentionally uses force to any person, without that person's consent in order to the committing of any offence or intending by the use of such force he will cause injury, fear, or annoyance to the person to whom the force is used is said to use criminal force to that other".[20]
  7. ^ The area under the definition consists of:
  8. ^ Defined in Article 180 as "objective conditions which are unforeseeable, unavoidable, and insurmountable"
  9. ^ For example, the American federal government has instituted a $250,000 cap on non-economic damages for medical malpractice claims.
  10. ^ For example, in 1999, a Los Angeles County jury awarded $4.8 billion in punitive damages against General Motors to a group of six burn victims whose 1979 Chevrolet Malibu was rear-ended by a drunk driver, causing it to catch fire.[73] That was later reduced to $1.2 billion by the judge.[74]
  11. ^ Depending on jurisdiction, this includes those of personal safety, property, and intangible economic interests or noneconomic interests such as the tort of negligent infliction of emotional distress
  12. ^ For example, in the business realm, the auditor has a duty of care to the company they are auditing – that the documents created are a true and reliable representation of the company's financial position. However, as per Esanda Finance Corporation Ltd v. Peat Marwick Hungerfords, such auditors do NOT provide a duty of care to third parties who rely on their reports. An exception is where the auditor provides the third party with a privity letter, explicitly stating the third party can rely on the report for a specific purpose. In such cases, the privity letter establishes a duty of care.[99]
  13. ^ The case Chapman v Hearse added to the precedent of negligence where in previous cases reasonable foreseeability was applied narrowly to include all predictable actions, Chapman v Hearse extended this to include all damages of the same nature which could be reasonably foreseen.[100]
  14. ^ Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.[101][102] The defendant may argue that there was a prior cause or a superseding intervening cause. A common situation where a prior cause becomes an issue is the personal injury car accident, where the person re-injures an old injury. For example, someone who has a bad back is injured in the back in a car accident. Years later, he is still in pain. He must prove the pain is caused by the car accident, and not the natural progression of the previous problem with the back. A superseding intervening cause happens shortly after the injury. For example, if, after the accident, the doctor who works on you commits malpractice and injures you further, the defendant can argue that it was not the accident, but the incompetent doctor who caused your injury. [1]
  15. ^ Defamation is tarnishing the reputation of someone; it has two varieties, slander and libel. Slander is spoken defamation and libel is printed or broadcast defamation. The two otherwise share the same features: making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the First Amendment to the Constitution of the United States, or Article 10 of the European Convention of Human Rights. Related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.
  16. ^ Also referred to as "business torts"

ReferencesEdit

CitationsEdit

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  4. ^ "Online Etymology Dictionary".
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  10. ^ See Medieval Sourcebook: The Anglo-Saxon Dooms, 560–975. Internet Medieval Source Book by Fordham University.
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  54. ^ 9 Restatement (First) of Conflict of Laws, §377.
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  61. ^ If one has a valid defence, one's conduct is justified, and one has not behaved wrongfully or unlawfully.
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  69. ^ For a speech by High Court judge Michael Kirby, see Medical malpractice - an international perspective of tort system reforms (11.9.2000)
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  75. ^ see, Guidelines for the Assessment of General Damages in Personal Injury Cases (2006), which lay out the standard figures, up to £200,000 for severe brain damages
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SourcesEdit

  • Deakin, Simon; Johnston, Angus; Markesinis, Basil (2008). Markesinis & Deakin's Tort Law. Oxford, England: Oxford University Press. ISBN 978-0-19-928246-3.
  • Lunney, Mark; Oliphant, Ken (2003). Tort Law - Texts, Cases (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, England: Hart Publishing. ISBN 1-84113-139-3.
  • Max Loubser, Rob Midgley, André Mukheibir, Liezel Niesing, & Devina Perumal. The Law of Delict in South Africa. Edited by Max Loubser & Rob Midgley. Cape Town, Western Cape: Oxford University Press, 2009 (3rd edn. 2018).

Further readingEdit

  • P.S.A. Pillai (2014). Law of Tort. ISBN 978-93-5145-124-2.
  • Eoin Quill (2014). Torts in Ireland. ISBN 978-0-7171-5970-3.
  • Charu Sharma (2017). Tort Liability for Environment Claims in India: A Comparative View (1st). ISBN 9788131250693.

External linksEdit

  •   Media related to Tort law at Wikimedia Commons
  •   Quotations related to Torts at Wikiquote
  •   The dictionary definition of tort at Wiktionary