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Law of Tort

What is tort?
A tort involves the infringement of a legal right (or breach of legal duty) and gives rise to a claim in the civil courts. Essentially it means wrong. The law of tort is the body of civil law which governs what happens when one person sues another person because of what that other person has done. The person brining the case is the claimant. The person against whom the case is brought is the defendant. There are some general principles which apply to all torts, but each also has its own set of rules which must be satisfied for any claim to succeed. Remedies in Tort People use the law of tort because they seek some remedy for the wrong they have suffered. Claimants may seek financial compensation (damages) or seek an order to stop continuing behaviour (injunction). Tort distinguished from Crime Criminal law governs the relationship between an individual and the rest of the community as a whole, whereas civil law (of which tort is a part) governs the relationships between individuals. There are many situations where it is possible to have both tortious and criminal liability. Differences between tort and crime: Tort claims are brought by the injured person who will be seeking a remedy to compensate him. Criminal actions are usually brought by a public official (Crown Prosecution Service) rather than the victim. Main function of a tort claim is compensation of the victim. Main function of criminal proceedings is punishment of the offender. Tort cases are dealt with by the civil courts (county court or high court), criminal cases dealt with by the criminal courts (magistrates or crown court). Tort distinguished from Contract Similarities: Both are civil claims which will be brought about in the county court or high court. Claimants in both contract and tort actions will usually damages as the principle remedy. Functions of both areas of law are to compensate the claimant for the loss suffered due to the defendants wrong doing. Differences: In contract, the parties obligations are fixed by the terms of the contract. In tort, liability does not depend on any consensus between parties; it is determined by rules (largely judge made) which dictate whether the defendants wrongdoing constitutes a tort. In contract only the parties to the contract can sue. In tort, the potential scope of liability is much wider. As obligations in tort are imposed by law, they are owed to the world at large. In contract, obligations are generally undertaken voluntarily (both parties agree to enter the contract), in tort obligations are imposed on a defendant by law. Because of the similarities between tort and contract, there will be occasions where a claimant has potential claims in both areas of law.

Functions of the law of tort


Compensation

Compensation of victims is seen as the law of torts principle function. Although there are issues which could hamper a victims ability to use the law of tort to claim compensation: 1. The need to go to court to achieve compensation, in an ideal world the victim would be compensated at the point of need and not have to wait. 2. The cost of litigation: to use the court system the victim must be able to afford to pay the legal costs involved. 3. Can the defendant afford to pay the compensation? The importance of insurance on tort as a compensation system. Due to the considerable number of incidents on the road and at work causing injury, compulsory insurance was introduced some time ago as a matter of public policy. In a medical negligence case, the doctor involved would also be covered by insurance. Due to the increased public awareness about legal rights and responsibilities, and the consequential increase in litigation, it is now normal for doctors and other professionals (e.g. lawyers and accountants) to be insured in respect of the work they do. In short, it is often the case that unless the defendant is insured, the victim regardless of his need for compensation is left with no effective remedy in tort and must look somewhere else to meet his needs. Deterrence This is another function of the law of tort. E.g. you may think twice about falsely accusing someone of being a thief, if you know you will have to pay him damages out of your own pocket. This is most relevant in cases where a defendant is not insured against the claim. Potential liability in tort however may have a deterrent effect. Justice It is often said that tort allows justice to be done. Justice has two aspects: retribution against the wrongdoer and compensation for the victim. Vindication of rights The claimants may wish to make a point of principle or initiate an investigation or provoke the authorities into acting. E.g. in some cases the personal representatives of a murder victim have successfully brought proceedings in tort against the alleged murderer, as a means of spurring the prosecuting authorities into action. This function of the law of tort is particularly prevalent following large-scale disasters such as the Piper Alpha oil platform explosion. Victims of the families who died often wish for the wrongdoing of others to be recorded formally. The deterrence function of tort can also be seen as victims/families do not want anyone else to have to experience what they have. In some cases vindication of rights and deterrence is more important to the claimants than compensation.

General Principles
Different types of harm The claimant must show that the loss or injury he has suffered is a type of harm recognised by the existing law of tort, or he must persuade the courts to extend the law so as to protect him. This does not mean that the claimant must always suffer tangible harm (i.e. injury or property damage). Some torts are actionable per se. claims in these torts (e.g. trespass to the person) do not require the claimant to have suffered any actual injury or damage. For these torts the infringement of a legal right that is protected by the law of tort is all the harm that the claimant needs to show. Claims falling outside the scope of tort If a claimant is unable to show that he suffered a type of harm which is recognised by tort then his claim in tort will fail unless he can convince the court to extend the law. Bradford Corporation v Pickles 1985 the claimant sought an injunction to prevent the defendant sinking further drains which would have rendered the reservoir useless. Pickles had legitimately used his own land and had not caused the Corporation any harm that was protected by tort. 2

Who does what in a tort claim? In all established torts, the law has developed a number or elements that the claimant must prove. If a claimant succeeds in doing this, he has established a case in principle (often called prima facie case) and will succeed unless the defendant can establish a defence. The burden of proving that a defendant has committed a tort lies with the claimant. However the burden of establishing a defence lies with the defendant. In contrast to criminal cases, where the standard of proof is beyond reasonable doubt, in civil cases the claimant must prove his case on the balance of probabilities. The main reason why there is a higher standard of proof is required in criminal cases is because a defendant risk losing his liberty if found guilty. In contrast, a defendant in a civil case will usually face only financial penalty.

Miscellaneous Issues
Parties As a general rule an individual can sue or be sued by anyone. Anyone who is under 18 years can sue or be sued but will conduct the litigation through a litigation friend often a parent or guardian. A childs parents may be involved as a litigation friend but parents are not liable legally or financially for the torts of their children. It is not often worth bringing a claim against a child defendant. A limited company Ltd has its own legal personality and can sue or be sued in its corporate name. Partnerships (firms) are merely a collection of individuals with no legal personality, procedural litigation rules allow them also to sue or be sued in their partnership name. When a person dies, any claim against him survives and is taken over by his personal representatives. Limitation Period Any claim in tort must be commenced within certain time limits. These so-called limitations are found in the Limitation Act 1980. For tort claims the limitation period is generally 6 years from when the cause of action arises. In special cases a claim for defamation must be brought within 1year of the publication of the defamatory statement. Any claim for person injuries must be brought within 3 years of the date of injury. When some under 18 is the claimant, the relevant period of time does not start until the child reaches 18 years. Vicarious Liability When an employee commits a tort in the course of his employment then the law allows any injured party to sue the tortfeasors employer as well as or instead of the employee himself. Tort and Human Rights Although the HRA 1998 creates a direct cause of action for breach on Convention rights against public authority defendants only, the impact of this new Convention system can be seen in many recent tort cases.

How to analyse a tort action


1. 2. 3. 4. 5. Identify all the possible claimants and defendants Identify the nature of the loss for each potential claimant Consider which torts (may be more than one) may be relevant Explain the elements of the relevant tort(s). Apply the law for the relevant tort(s) to the facts of the case, discussing any particular issues that may arise 6. Identify any arguable defences and discuss these in relation to the facts of the case 7. Reach a conclusion if possible on whether the defendants will be liable 8. Consider what the possible remedies are.

The tort of trespass to the person


Trespass to the person is an umbrella term used to describe 3 separate torts: assault, battery and false imprisonment. These torts were developed centuries ago to protect the personal integrity of citizens and remain important today as a means of upholding our rights and freedoms.

Common Issues Elizabeth raises her fist and threatens to hit Fiona, George throws a bucket of water over Hazel. In these situations the victim of the intentional conduct has not suffered any actual injury. This does not matter when claiming in trespass to the person. Both assault and battery require intentional conduct. In Letang v Cooper 1964 Lord Denning said if the defendants actions are only careless (negligent) then the claimant should sue in tort of negligence. Again trespass to the person is actionable per se the claimant need not prove any tangible physical harm in order to sue. Definition of assault and battery Battery the intentional direct application of unlawful force to another person (the attack itself) Assault an intentional act by the defendant that causes another person to reasonably apprehend the immediate infliction of a battery upon him (fear of an attack). Requirements of battery Intentional application of unlawful force In F v west Berkshire Lord Goff said that there was a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of every day life. Such conduct falls outside the scope of battery and is therefore not unlawful. Intentional conduct For battery a defendant need not intend the consequences of his actions. It is enough that the actions themselves are intentional. Direct application of force Direct means the force must flow almost immediately and without intervention from the defendants actions. The defendant need not make physical contact with the claimants body. The tort of battery is equally committed where the defendant uses some medium provided that the medium is controlled by the defendant and the application of force to the claimant follows from its use without any intervention. Requirements of assault Intentional conduct by the defendant Reasonable apprehension by the claimant Of an immediate infliction of a battery. Assault by words alone Historically it was thought that words alone could not amount to an assault; they had to be accompanied with actions/gestures (Read v Coker 1853). In R v Ireland 1998 Lord Steyn said: there is no reason why something said should be incapable of causing an apprehension of immediate violence and that immediate could certainly cover something which would happen within a minute or so. The House of Lords decision appears to have replaced the traditional view that words alone cannot constitute an assault. However, words can also take away the threat of an immediate battery. Other intentionally caused harm Due to the rigid way the law operates there are some cases where the defendant has acted intentionally that will not fit within the law of trespass to the person.

If the harm that a claimant has suffered falls outside that recognised by the existing law then the claimants claim will fail unless they convince the court to change the existing law. Wilkinson v Downtown 1897 is the authority that is the basis for a cause of action when a defendant intends to cause shock to the claimant who suffers some tangible damage as a result. In this case it was essential that she suffered actual damage. Later cases and commentators have made it clear that the claimant must suffer some recognised illness or injury. The tort that Wilkinson v Downtown created is not actionable per se. In Wainwright v Home Office 2004, claimants had been strip searched when visiting prison, argued they can claim under the rule of Wilkinson v Downtown. House of Lords rejected their claim and confirmed that not cause of action would lie unless the resultant damage to there claimant amounted to a medically recognised condition.