Tortious Liability

Tortious Liability

Introduction
Law is any rule of human conduct accepted by the society and enforced by the state for the betterment of human life. According to Salmond, the law consists of rules recognized and acted on by courts of justice. The entire body of law in a state (corpus juris) may be divided into two, viz, civil and criminal.

Civil law: The term may be used in two senses. In one sense it indicates the law of a particular state as distinct from its external law such as international law. On the other side, in a restricted sense, civil law indicates the proceedings before civil courts where the civil liability of individuals for wrongs committed by them and other disputes of a civil nature among them are adjudicated upon and decided. Civil wrong is the one which gives rise to civil proceedings, i.e., proceedings which have for their purpose the enforcement of some right claimed by the plaintiff as against the defendant.

Criminal Law: Criminal laws indicate the proceedings before the criminal courts where the criminal liability of persons who have committed wrongs against the state and other prohibited acts are determined. Criminal proceedings, on the other hand, are those which have for their object the punishment of the wrongdoer for some act of which he is accused.

Definition of Tort

The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The word tort is derived from the Latin word tortum which means ‘twisted’ or ‘crooked’ or ‘wrong’. Tort is a conduct which is twisted or crooked and not straight. In English law, tort has acquired a special meaning as a species of civil injury or wrong. It was introduced into the English law by the Norman jurists.

Tort now means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable.

Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.

Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation.

A tortious liability is related to the duty of care, and negligence of that duty, with respect to persons with whom there is no contractual liability.

In order to establish that a particular act was tortious, a plaintiff must prove that an actionable wrong existed and that damages ensued from that wrong. The state is a legal entity and not a living entity; it has to act through human agency through its servants. The liability of the state for the tortious acts of its servant that has to be considered. In other words, it refers to when the state can be held vicarious liable for the wrongs committed by its servants.

Categories

Torts may be categorized in several ways, but it can be simply divided into negligent and intentional 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 or noneconomic interests such as the tort of negligent infliction of emotional distress. 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.

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 neighbour 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.

Negligence

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.
In Donoghue v Stevenson [1932] 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.

The elements in determining the liability for negligence are:

• The plaintiff was owed a duty of care through a special relationship (e.g. doctor-patient) or some other principle
• There was a dereliction or breach of that duty
• The tortfeasor directly caused the injury [but for the defendant's actions, the plaintiff would not have suffered an injury].
• The plaintiff suffered damage as a result of that breach
• The damage was not too remote; there was proximate cause to show the breach caused the damage

In certain cases, negligence can be assumed under the doctrine of res ipsa loquitur (Latin for "the thing itself speaks"); another related concept is negligence per se.

Intentional Torts

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:

• Torts against the person include assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud, although the latter is also an economic tort.
• 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.

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. Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.

Some other types of tort are:

·         Proximate cause: Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.

·         Statutory torts: A statutory tort is like any other tort, 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.

·         Nuisance: 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).

·         Defamation: 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, Action related to defamation are actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.

·         Business torts: Business or economic torts 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 the economic loss is recoverable is the "foreseeability" doctrine. In 2010, the supreme court of the U.S. of Washington replaced the economic loss doctrine with an "independent duty doctrine".

Liability

A comprehensive legal term that describes the condition of being actually or potentially subject to a legal obligation.

Joint liability is an obligation for which more than one person is responsible.

Joint and several liability refers to the status of those who are responsible together as one unit as well as individually for their conduct. The person who has been harmed can institute a lawsuit and recover from any or all of the wrongdoers—but cannot receive double compensation, for instance, the full amount of recovery from each of two wrongdoers.

Primary liability is an obligation for which a person is directly responsible; it is distinguished from Secondary Liability which is the responsibility of another if the party directly responsible fails or refuses to satisfy his or her obligation.

Liability may arise due to some involvement, notably through joint and several liability doctrines as well as forms of secondary liability. Liability may arise through enterprise liability. Other concepts include market share liability.

Vicarious liability

In certain cases, a person might be liable for their employee or child under the law of agency through the doctrine of respondent 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 a 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.

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 summarized 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 injuries, 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. 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. This meant that if the plaintiff was 1% at fault, the victim would lose the entire lawsuit.

In comparative negligence, the victim's damages are reduced according to the degree of fault. Comparative negligence has been criticized as allowing a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant. Economists have further criticized 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

Historically, immunity has been granted to governments under sovereign immunity and to charitable organizations under charitable immunity, although these have eroded in the United States. Various laws limit liability when giving aid to a person in need; liability can arise from a failure to help due to the duty to rescue.

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, 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.


*Disclaimer: The contents of the blog are not intended to convey any legal advice to the reader neither the blog creates any attorney-client relationship. You may contact an enrolled legal practitioner for assistance with your legal needs.*