Tort

Not to be confused with torte, an iced cake.

Tort is a legal term in common law jurisdictions that means a civil wrong, and can be a criminal wrong, that is recognized by law as grounds for a lawsuit. Its equivalent in civil law jurisdictions is delict. It is part of the law of obligations but unlike voluntarily assumed obligations on the parties created through a contract, the duties imposed under tort law are mandatory for all citizens in that jurisdiction. To behave 'tortiously' is to harm another's body, property, or legal rights, or to breach a duty owed under statutory law.

Categories of torts

The dominant action in tort is negligence, which is used to protect people's bodies and property, including non tangible economic interests. There are certain torts that specially protect land, such as nuisance, which is strict liability for neighbors who interfere with another's enjoyment of their property. Trespass allows owners to sue for intentional incursions by people on their land. There is a tort for false imprisonment, and a tort for defamation, where someone makes an unsupportable allegation represented to be factual which damages the reputation of another. There are statutory, creating product liability and sanctions against anti-competitive companies. The foundation of labor law in the modern welfare state also begins with tort, as a means to mitigate conflicting relations between unions and employers. And now the scope of tort law's application spreads every day. As Lord MacMillan said, in tort's most famous case, "the categories of negligence are never closed".

Negligence

Main article: Negligence

A decomposed snail in Scotland was the humble beginning of the modern law of negligence

Negligence is a tort which targets a breach of duty by one person to another. One well-known case is Donoghue v. Stevenson where Mrs. Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland. The snail was not visible, as the bottle of ginger beer in which it was contained was opaque. Neither her friend, who bought it for her, nor the shopkeeper who sold it were aware of its presence. The manufacturer was Mr. Stevenson, whose ginger beer business Mrs. Donoghue sued for her consequent illness. The members of the House of Lords agreed that Mrs. Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan, as above, thought this should be treated as a new product liability case. Lord Atkin argued that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbor. He quoted the Bible in support of his argument, specifically the general principle that "thou shalt love thy neighbor." Thus, in the world of law, he created the doctrine that we should not harm our neighbors. The elements of negligence are:

• A duty of care
• Breach of that duty
• Breach causing harm in fact
• Breach being a proximate or not too remote a cause, in law

Statutory torts

Main articles: Product liability, Trespasser, and Licensee

A statutory tort is like any other, by imposing duties on private or public parties, except that they are created by the legislature, not the courts. One example is in consumer protection, with the Product Liability Directive in the European Union, where businesses making defective products that harm people must pay for any damage resulting. Liability for defective products is strict in most jurisdictions. The theory of risk spreading provides support for this approach. Since manufacturers are the 'cheapest cost avoiders', because they have a greater chance to seek out problems, it makes sense to give them the incentive to guard against product defects.

Another example is the Occupiers' Liability Acts in the UK whereby a person, such as a shopowner, who invites others onto land, or has trespassers, owes a minimum duty of care for people's safety. One early case was Cooke v Midland Great Western Railway of Ireland, where Lord MacNaughton felt that children who were hurt whilst looking for berries on a building site, should have some compensation for their unfortunate curiosity. Statutory torts also spread across workplace health and safety laws and health and safety in food produce.

The concept of statutory torts is not held throughout all common-law countries, however. Courts in both the United States and Canada have rejected the concept that a statutory duty can be the basis of a private cause of action, absent a specific provision in statute authorizing such a cause of action.

Nuisance

Main articles: Nuisance and Rylands v. Fletcher

The tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. A good example of this is in the case of Jones v Powell (1629). A brewery made stinking vapors waft to neighbors' property, damaging his papers. Because he was a landowner, the neighbor sued in nuisance for this damage. But Whitelocke J, speaking for the Court of the King's Bench, said that because the water supply was contaminated, it was better that the neighbor's documents were risked. He said "it is better that they should be spoiled than that the common wealth stand in need of good liquor." Nowadays, interfering with neighbors' property is not looked upon so kindly. Nuisance deals with all kinds of things that spoil a landowner's enjoyment of his property.

A subset of nuisance is known as the rule in Rylands v. Fletcher where a dam burst into a coal mine shaft. So a dangerous escape of some hazard, including water, fire, or animals means strict liability in nuisance. This is subject only to a remoteness cap, familiar from negligence when the event is unusual and unpredictable. This was the case where chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's reservoirs.

Defamation

Main article: Defamation

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The "McLibel" two were involved in the longest running case in UK history for publishing a pamphlet criticizing McDonald's restaurants

Defamation means tarnishing the reputation of someone. It is divided into two parts, slander and libel. Slander is spoken defamation and libel is defaming somebody through print (or broadcasting). Both share the same features. To defame someone, you must (a) make a factual assertion (b) for which you cannot provide evidence of its truth. Defamation does not affect the voicing of opinions, but comes into the same fields as rights to free speech in the United States Constitution's First Amendment, or the European Convention's Article 10. Related to defamation in the US 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.

Intentional torts

Main article: Intentional tort

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, including tort(s) against the person, including assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud. Property torts involve any intentional interference with the property rights of the claimant. Those commonly recognized include trespass to land, trespass to chattels, and conversion.

Economic torts

Main article: Economic tort

Strikers gathering in Tyldesley in the 1926 General Strike in the U.K.

Economic torts protect people from interference with their trade or business. The area includes the doctrine of restraint of trade and has largely been submerged in the twentieth century by statutory interventions on collective labour law and modern antitrust or competition law. The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon."

Two cases demonstrated economic tort's affinity to competition and labor law. In Mogul Steamship Co. Ltd. the plaintiff argued he had been driven from the Chinese tea market by competitors at a 'shipping conference' that had acted together to underprice his company. But this cartel was ruled lawful and "nothing more [than] a war of competition waged in the interest of their own trade." Nowadays, this would be considered a criminal cartel. In labor law the most notable case is Taff Vale Railway v. Amalgamated Society of Railway Servants. The House of Lords thought that unions should be liable in tort for helping workers to go on strike for better pay and conditions. But it riled workers so much that it led to the creation of the British Labour Party and the Trade Disputes Act 1906 Further torts used against unions include conspiracy, interference with a commercial contract or intimidation.

Through a recent development in common law, beginning with Hedley Byrne v Heller in 1964, and further through the Misrepresentations Act 1967, a victim of the tort of misrepresentation will be compensated for purely economic loss due to the misconception of the terms of the contract.

Competition law

Main article: Competition law

Modern competition law is an important method for regulating the conduct of businesses in a market economy. A major subset of statutory torts, it is also called 'anti-trust' law, especially in the US Articles 81 and 82 of the Treaty of the European Union, as well as the Clayton and Sherman Acts in the U.S. create duties for undertakings, corporations, businesses, to not distort competition on the market. Cartels are forbidden on both sides of the Atlantic. So is the abuse of market power by monopolists, or the substantial lessening of competition through a merger, acquisition, or concentration of enterprises. A huge issue in the E.U. is whether to follow the U.S. approach of private damages actions to prevent anti-competitive conduct.

Liability, defenses, and remedies

Vicarious liability

Main article: Vicarious liability

The word 'vicarious' derives from the Latin for 'change' or 'alternation' or 'stead' and in tort law refers to the idea of one person being liable for the harm caused by another, because of some legally relevant relationship. An example might be a parent and a child, or an employer and an employee. You can sue an employer for the damage to you by their employee, which was caused 'in the course of employment'. For example, if a shop employee spilled cleaning liquid on the supermarket floor, one could sue the employee who actually spilled the liquid, or sue the employers. In the aforementioned case, the later option is more practical as they are more likely to have more money. The law replies "since your employee harmed the claimant in the course of his employment, you bear responsibility for it, because you have the control to hire and fire him, and reduce the risk of it happening again." There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation.

Defences

Finding a successful defence absolves the defendant from full or partial liability for damages, which makes them valuable commodities in the court. There are three main defences to tortious liability.

Volenti non fit injuria

Main article: Volenti non fit injuria

This is Latin for "to the willing, no injury is done". It operates when the claimant either expressly or implicitly consents to the risk of loss or damage. For example, if a regular spectator at an ice hockey match is injured when a player strikes the puck in the ordinary course of play, causing it to fly out of the rink and hit him or her, this is a foreseeable event and regular spectators are assumed to accept that risk of injury when buying a ticket. A slightly more limited defense may arise where the defendant has been given a warning, whether expressly to the plaintiff/claimant or by a public notice, sign or otherwise, that there is a danger of injury. The extent to which defendants can rely on notices to exclude or limit liability varies from country to country. This is an issue of policy as to whether defendants should not only warn of a known danger, but also take active steps to fence the site and take other reasonable precautions to prevent the known danger from befalling those foreseen to be at risk.

Contributory negligence

Main article: Contributory negligence

This is either a mitigatory defence or, in the United States, it may be an absolute defence. When used as a mitigatory defence, it is often known in the US as comparative negligence. Under comparative negligence a plaintiff/claimant's award is reduced by the percentage of contribution made by the plaintiff to the loss or damage suffered. Thus, in evaluating a collision between two vehicles, the court must not only make a finding that both drivers were negligent, but it must also apportion the contribution made by each driver as a percentage, e.g. that the blame between the drivers is 20% attributable to the plaintiff/claimant: 80% to the defendant. The court will then quantify the damages for the actual loss or damage sustained, and then reduce the amount paid to the plaintiff/claimant by 20%. In all but four states in the US, if the defendant proves both that the plaintiff/claimant also acted negligently and that this negligence contributed to the loss or damage suffered, this is a complete defence.

This doctrine has been widely criticized as draconian, in that a plaintiff whose fault was comparatively minor might recover nothing from a more egregiously irresponsible defendant. In all but four US states, it has been replaced judicially or legislatively by the doctrine of comparative negligence. Comparative negligence has also been criticized, since it would allow a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant, and often more when a jury is feeling sympathetic. Economists have further criticized comparative negligence, since under the Learned Hand Test it will not yield optimal precaution levels.

Illegality

Ex turpi causa non oritur actio is the illegality defence, the Latin for "no right of action arises from a despicable cause". If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained "but for" the property owner's intervention.

Remedies

The main remedy against tortious loss is compensation in 'damages' or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defence against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction. 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.

Theory and reform

Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated and punitive. In The Aims of the Law of Tort (1951), Glanville Williams saw four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.

From the late 1950s a group of legally oriented economists and economically oriented lawyers emphasized incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. They are often described as the law and economics movement. Ronald Coase, one of the movement's principle proponents, submitted, in his article The Problem of Social Cost (1960), that the aim of tort should be to reflect as closely as possible liability where transaction costs should be minimized.

Calls for reform of tort law come from diverse standpoints reflecting diverse theories of the objectives of the law. Some calls for reform stress the difficulties encoutered by potential claimants. Because of all people who have accidents, only some can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery". Consequently, in New Zealand, the government in the 1960s established a "no-fault" system of state compensation for accidents. Similar proposals have been the subject of Command Papers in the UK and much academic debate.

However, in the U.S. calls for reform have tended to be for drastic limitation on the scope of tort law, a minimisation process on the lines of economic analysis. Anti-trust damages have come under special scrutiny, and many people believe the availability of punitive damages generally are a strain on the legal system.

Theoretical and policy considerations are central to fixing liability for pure economic loss and of public bodies.

See also: Tort reform in the United States

Tort and criminal law

There is some overlap between crime and tort, since tort, a private action, used to be used more than criminal laws in centuries gone. 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. That explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts.

Many jurisdictions, especially the US, retain punitive elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with actually criminal acts. Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment. Some torts may have a public element — for example, public nuisance — and sometimes actions in tort will be brought by a public body. Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restitution which criminal courts can directly order the defendant to pay to the victim. See also Ronen Perry, The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, 73 Tenn. L. Rev. 177 (2006).

Tort by legal jurisdiction

Legal jurisdictions whose legal system developed from the English common law have the concept of tortious liability. There are technical differences from one jurisdiction to the next in proving the various torts. For the issue of foreign elements in tort see Tort and Conflict of Laws.

• Australian tort law
• Canadian tort law
• English tort law
• Scots tort law
• United States tort law

Etymology

Middle English, "injury", from Anglo-French, from Medieval Latin tortum, from Latin, neuter of tortus "twisted", from past participle of torquēre.

See also

• List of tort topics
• List of tort cases
• Tort reform

Further reading

• Simon Deakin, Angus Johnston and Basil Markesinis, Tort Law (2003) 5th Ed. Oxford University Press, ISBN 0-19-925711-6
• Mark Lunney, Ken Oliphant, Tort Law - Texts, Cases (2003) 2nd Ed. Oxford University Press, ISBN 0-19-926055-9

External links

• Free Legal Advice/Legal Discussion Board