Explain the current position in respect of liability for personal injury in relation to the tort.

Tort law is a branch of the law which covers civil wrongs, such as defamation and trespassing, among many other transgressions[1]. Under tort law, if someone suffers a physical, legal, or economic harm, he or she may be entitled to bring suit. If the suit is deemed valid, damages may be awarded to the victim to compensate for his or her troubles. Most tort laws are found in regional, state, and national civil codes, which often spell out limits on damages and the statute of limitations for tort cases[2].

A tort, in common law jurisdictions, is a civil wrong. Tort law deals with situations where a person’s behavior has unfairly caused someone else to suffer loss or harm. A tort is not necessarily an illegal act but causes harm and therefore the law allows anyone who is harmed to recover their loss. Tort law is different to criminal law, which deals with situations where a person’s actions cause harm to society in general. A claim in tort may be brought by anyone who has suffered loss. Criminal cases tend to be brought by the state, although private prosecutions are possible.

Tort law is also differentiated from equity, in which a petitioner complains of a violation of some right. One who commits a tortuous act is called a tortfeasor. The equivalent of tort in civil law jurisdictions is depicting. Tort may be defined as a personal injury; or as “a civil action other than a breach of contract.”[3]

A person who suffers a tortuous injury is entitled to receive “damages”, usually monetary compensation, from the person or people responsible — or liable — for those injuries. Tort law defines what a legal injury is and, therefore, whether a person may be held liable for an injury they have caused. Legal injuries are not limited to physical injuries. They may also include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Tort cases therefore comprise such varied topics as auto accidents, false imprisonment[4], defamation, product liability (for defective consumer products), copyright infringement, and environmental pollution (toxic torts), among many others.

In much of the common law world, the most prominent tort liability is negligence. If the injured party can prove that the person believed to have caused the injury acted negligently – that is, without taking reasonable care to avoid injuring others – tort law will allow compensation.

However, tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms another, and “strict liability” or quasi-tort[5], which allows recovery under certain circumstances without the need to demonstrate negligence.

 Categories of torts

Torts may be categorized in several ways: one such way is to divide them into Negligence, Intentional Torts, and Quasi-Torts.

The standard action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. Negligence actions include claims coming primarily from car accidents and personal injury accidents of many kinds, including clinical negligence, worker’s negligence and so forth. Product liability cases, such as those involving warranties, may also be considered negligence actions, but there is frequently a significant overlay of additional lawful content.

Intentional torts include, among others, certain torts arising from the occupation or use of land. The tort of nuisance, for example, involves strict liability for a neighbor who interferes with another’s enjoyment of his real property. Trespass allows owners to sue for entrances by a person (or his structure, such as an overhanging building) on their land. Several intentional torts do not involve land. Examples include false imprisonment, the tort of unlawfully arresting or detaining someone, and defamation (in some jurisdictions split into libel and slander), where false information is broadcast and damages the plaintiff’s reputation.

In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, 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.

Negligence

Negligence is a tort which depends on the existence of a breaking of the duty of care owed by one person to another. One well-known case is Donohue v Stevenson where Mrs. Donohue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland and claimed that it had made her ill. The snail had not been visible, as the bottle of beer in which it was contained was opaque. Neither the friend who bought the bottle for her, nor the shopkeeper who sold it, were aware of the snail’s presence. The manufacturer was Mr. Stevenson, whom Mrs. Donohue sued for damages for negligence. She could not sue Mr. Stevenson for damages for breach of contract because there was no contract between them. The majority of the members of the House of Lords agreed (3:2 ratio) that Mrs. Donohue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this should be treated as a new product liability case. Lord Atkins argued that the law should recognize a unifying principle that we owe a duty of reasonable care to our neighbors. He quoted the Bible in support of his argument, specifically the general principle that “thou salt love thy neighbor.” Negligence is a breach[6] of legal duty to take care resulting in damage to the plaintiff[7]. This definition of negligence can be divided into four component parts that the applicant must prove to establish negligence. The legal burden of proving these elements falls upon the plaintiff. The elements in determining the liability for negligence are:

  • The plaintiff was owed a Duty of care
  • There was a Dereliction or breach of that duty
  • The tortfeasor directly caused the injury [but for the defendant’s actions, the plaintiff suffered an injury].
  • The plaintiff suffered Damage as a result of that breach
  • The damage was not too remote.

 

 Duty of care:

The first element of negligence is the legal duty of care. This concerns the relationship between the defendant and the plaintiff, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the plaintiff in all the circumstances of the case. There are two ways in which a duty of care may be established:

  • the defendant and plaintiff are within one of the ‘special relationship’; or
  • Outside of these relationships, according to the principles developed by case law.

There are a number of situations in which the courts recognize the existence of a duty of care. These usually arise as a result of some sort of special relationship between the parties. Examples include one road-user to another, employer to employee, manufacturer to consumer, doctor to patient and solicitor[8] to client.

 

Dereliction or breach of that dutyDereliction of duty generally refers to a failure to conform to rules of one’s job, which will vary by tasks involved. It is a failure or refusal to perform assigned duties in a satisfactory manner. Dereliction[9] of duty on the part of an employee may be cause for disciplinary action, which will vary by employer. It may refer to a failure by an organization member to abide by the standing rules of its constitution or by-laws or perform the duties of the position appointed to.

Injury directly caused by the tortfeasor[10]

The negligent act of the tortfeaser must be connected to the injuries suffered.

Damage as a result of that breach

For many torts, damage is a necessary part of the tort. Thus, it is not enough to demonstrate that you have suffered the wrong in order to win a tort case, you must also have legally recognized damages that were directly or indirectly caused by the as a result of the tort, and be able to prove the extent of those damages.

Proximate cause

Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.[11] The defense 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 auto accident, where the person re-injures an old injury. For example someone who has a bad back is injured in the back in an auto accident. Years later they are still in pain. They must prove the pain is caused by the auto 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 defense can argue that it was not the accident, but the incompetent doctor who caused your injury.

Statutory torts

A statutory tort[12] is like any other, in that it imposes duties on private or public parties; however 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 bad or not working 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 occupier’s liability, which was seen as overly complex and illogical; so many jurisdictions replaced the common law rules for occupiers’ liability with statutory torts. Statutory torts also spread across workplace health and safety laws and health and safety in food produce.Such torts as often grouped in with quasi-torts.

 Nuisance

Legally, the term “nuisance” is traditionally used in three ways: (1) to describe an activity or condition that is harmful or annoying to others (example- indecent conduct, a rubbish heap or a smoking chimney); (2) to describe the harm caused by the before-mentioned activity or condition (example- loud noises or objectionable odors); and (3) to describe a legal liability (responsibility) that arises from the combination of the two. The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (example- private nuisance) or with the rights of the general public (example-public nuisance).

The tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. A good example of this is in the case of Jones v Powell. A brewery made stinking vapors which wafted onto a neighbor’s property, damaging his papers. As he was a landowner, the neighbor sued in nuisance for this damage. But Whitlock 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 Ryland’s v. Fletcher, where a dam burst into a coal mine shaft. So a dangerous escape of some hazards, including water, fire, or animals mean 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 water reservoirs.

Free market environmentalists[13] would like to expand tort damage claims into pollution (example-toxic torts) and environmental protection.

Defamation

Defamation[14][15] 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.

 Intentional torts

Intentional torts[16] are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories, including torts 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 (plaintiff). Those commonly recognized include trespass to land, trespass to chattels (personal property), and conversion.

 Personal injuries[17] occur when an individual sustains physical harm as a result of the willful or negligent behavior of another. The law holds irresponsible people and entities accountable for their actions, allowing injured victims to recover damages that resulted from the accident. Victims are generally able to receive compensation for things like:

  • Medical/Doctor bills
  • Prescription drug expenses
  • Lost wages
  • Loss of potential future income
  • Rehabilitation costs http
  • Pain and suffering

 In tort law, a defendant would be required to pay damages or compensation for the injuries of a plaintiff only if that defendant is found to be responsible for the cause of the plaintiff’s injury. Where the defendant is so responsible, he or she is said to be liable. Liability in tort law may be based on fault or it may be strict.  Fault liability concerns the failure to live up to a standard through an act or omission. There are two main types of fault liability:

  • (a) liability may be due to an intentional  act ( for example, where a defendant intentionally causes an injury to the plaintiff by hitting him or her); and
  • (b) Liability may also be due to a negligent act (such as where the defendant negligently causes an injury to the plaintiff).

In general, there is no liability without fault. Thus even where a person causes an injury to another, that person is not liable for a tort unless fault (i.e. intention to cause the injury or negligent conduct) can be proven. Where the injury is caused neither intentionally nor negligently, it may be described as a ‘pure accident’, and is not actionable. On the other hand, there are a small number of torts which require no fault for liability. These are described as strict liability torts. In such torts, one can be held liable once it is proved that he or she caused the injury irrespective of whether their conduct was intentional or negligent or not. The element of intent is crucial in torts and must be understood properly as a foundation for a significant part of the subject. One can speak of intent or the ‘intentional act’ as the basis of fault liability in four principal instances:

  • (a) the deliberate or willful conduct of the defendant (for example where the defendant willfully or deliberately hits the plaintiff in the face);
  • (b) constructive intent (in cases where the consequences of the defendant’s conduct are substantially certain or foreseeable as for example where the defendant throws a brick into a crowded room and hits the plaintiff);
  • (c) where the defendant’s conduct is reckless (for example, where the defendant kicks or throws arms around without consideration for the safety of the plaintiff who is near, and subsequently causes injury to the plaintiff); or
  • (d) Transferred intent where the defendant intends to hit B but misses and hits P instead the defendant would be taken as having intended to hit.

The element negligence there is two senses in which the law of torts deals with negligence. In its ‘ordinary’ meaning, negligence simply refers to a careless conduct of the defendant as opposed to a willful conduct. However in tort law, the term negligence is used more commonly in its technical sense to mean the breach of a duty by the defendant consisting of his or her failure to take reasonable care to avoid a reasonably foreseeable harm to another person. A significant section of the law of torts is based on this notion of negligence. Causes of action before a person can sue another in tort; he or she usually has to fit the facts of the case into the framework of a recognized cause of action. There are two principal forms of actions in torts these are actions in Trespass and actions in negligence. In addition to these two there is a range of related torts which are dealt with later in this text. Interests protected in tort law Like other branches of law, the law of torts protects specific interests these include:

  • (a) personal security (through the torts of trespass and negligence);
  • (b) personal reputation (through the tort of defamation);
  • (c) property rights (through trespass and conversion); and
  • (d) Economic and financial interest (through trespass and conversion).

In legal terms, the word liability refers to fault. The person who is at fault is liable[18] to another because of his or her actions or failure to act. One example is in the case of a crime. The liability of the offending party may include providing restitution for damage to property or paying medical bills in the case of physical injury.

Another example of liability in the legal realm is an automobile accident. The person who caused the accident, through action or omission, is liable to the injured party. Liability insurance exists for just such a purpose. It covers the expenses of the injured party, including damage to the vehicle or other property as well as a certain amount of medical expenses, and may reimburse the injured party for attorney’s fees if civil action is required.

In accounting terms, liability describes an obligation[19]. It refers to money owed to complete a transaction, debt that has yet to be paid, or products or services that have been paid for but have not yet been rendered. There are two general classifications to sum up these types of liability: long term and short term. Long-term describes debt paid out over more than one year, while short-term liability refers to debt paid within a year or less.

 Bibliography



[1] Transgression – the action of going beyond or overstepping some boundary or limit. The violation of a law or a duty or moral principle; “the boy was punished for the transgressions of his father”

[2]See- http://www.wisegeek.com/what-is-tort-law.htm

[3] See-http://topics.wisegeek.com/topics/tort-law.htm#

[4] false imprisonment -The illegal confinement of one individual against his or her will by another individual in such a manner as to violate the confined individual’s right to be free from restraint of movement

[6] Breach – break.

[7] Plaintiff- applicant

[8] Solicitor-  An attorney or advocate; one who represents another in court; — formerly, in English practice, the professional designation of a person admitted to practice in a court of chancery or equity. See the Note under Attorney.

[9] Dereliction-neglect

[10] Tortfeasor – a person who commits a tort (civil wrong), either intentionally or through negligence.

[11] See-http://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts12.htm

[12] See-http://en.wikipedia.org/wiki/Tort

[13] Free-market environmentalism is a position that argues that the free market, property rights, and tort law provide the best tools to preserve the health and sustainability of the environment. This is in contrast to the most common modern approach of legislation by which the state intervenes in the market to protect the environment.

[14] Defamation-insult

[15] See- http://en.wikipedia.org/wiki/Tort

[16] See-http://en.wikipedia.org/wiki/Tort

[17] See- http://www.alllaw.com/topics/personal_injury

[18] See-http://www.findlaw.com.au/articles/149/the-nature-of-tort-liability.aspx