Lecture # 1 Introduction to Law of Tort

Transcription

1 Introduction Lecture # 1 Introduction to Law of Tort By: Salik Aziz Vaince [ ] The Tort is from the word Tortum (twist) means something went wrong. In other words what must be happen, in the right way is not happened in the right way, but happened in a wrong way. That wrong action caused injury so other person is entitled for remedy. Tort is the breach of some civil duty independent of contract for which compensation may be recoverable. If there is an injury for which no compensation is recoverable is not tort. There must be a mutual right and duty, no tort if there is a no right and duty. There is no right without a duty, there is no father without child; there is no husband without wife. The right cannot be created every person got the right by birth and the legislation only recognized it. The law of tort is based on common law. It is not the part of statute law. The law of tort is always in developing stage not developed, like a nail of screw it finds out the way in the wall and screw got the path. The law of tort will grow when there is a requirement as per needs of society. It is still growing. If something wrong happened with you it does not mean its tort. There must be a duty towards a person who seeks remedy. Every wrong is not a tort for Example: you are running a school then someone opened another school near your school and lot of students moved to other school you are at loss but you cannot claim, because it s not your sole right and the other one owing no duty towards you. Civil wrong is an action with a tort, an act against another person or their property, and, a breach of the terms of a contract. An act comprised of two parts. The first, called a tort, is an act against another person or their property. The second is the breach of the terms of a contract. A crime is considered a public wrong, and violates a law made for the general public. A civil wrong, is a private wrong between two persons. The difference is in numbers for the two; however the punishment can amount to the same. I can say that tort is a civil wrong, to constitute a tort there must be a wrongful act committed by a person, and it must give rise to legal damage as well as to legal remedy. The remedy should be by the way of compensation in money. The law of tort covers a wide range of situations, including such diverse claims as those of a passenger injured in a road accident, a patient injured by a negligent doctor, a celebrity libelled by newspaper, a citizen wrongfully arrested by the police. Meaning The word tort is derived from Latin word Tortum which means to twist, and implies conduct which is twisted or tortious. It is equivalent of English Word Wrong. It now means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. VLC Publishers Page 1

2 Definition It is difficult to pin down a definition of a tort; but, in broad terms, a tort occurs where there is breach of a general duty fixed by civil law. Salomond: According to Salmond A Tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a trust or other merely equitable obligation. Oxford Dictionary: Tort is a private or civil wrong S. A. Vaince: The body of the law which allows an injured person to obtain compensation from the person who caused the injury or loss, due to a wrong action. American jurist Edward Kionka writes: "Tort is an elusive concept (and) has defined... attempts to formulate a useful definition... The one common element is that someone has sustained a loss or harm as the result of some act or failure to act by another. "Tort is perhaps the last symbol of the common law... Tort law remains uncodified and in large part unaffected by statute." Most common examples are: 1. Trespass to person (not to assault or battery) 2. Trespass to land (not to interfere directly with another person s land) 3. Negligence (impose a duty on one person to take care) Nature of Law of Tort Tort refers to that body of the law which will allow an injured person to obtain compensation from the person who caused the injury, the person causing the injury and committing the tort referred as a tortfeasor. In Hall v Herbert, Canada's Supreme Court stated: "It is difficult to define the nature of a tort. Indeed one of the greatest writers in the field, W.L. Prosser has expressed the opinion that it should not be defined. "Perhaps it is easiest to begin by saying what it is not. A tort is not a crime. Although criminal law and tort law grew from the same roots they are today quite distinct and different. Criminal law is designed to provide security for the citizens of the state. It attempts to define that conduct which society finds abhorrent and therefore necessary to control. Those who commit crimes are prosecuted by the state and are subject to punishment which reflects the state's or society's abhorrence for the particular crime. "Nor is the law of torts contractual in its nature. Contract law seeks to enforce the rights which arise out of an agreement whose parties have voluntarily agreed to be bound by its terms. The law of contract seeks to enforce the terms of the agreement specifically or provide compensation for its breach. Nor can torts fall under the title of quasi-contractual relief. That remedy seeks to prevent unjust enrichment that might, for example, arise out of payment of money under mistake. The law of tort covers a much wider field than does contract... It provides a means whereby compensation, usually in the form of damages, may be paid for injuries suffered by a party as a result of the wrongful conduct of others." VLC Publishers Page 2

3 Every person is expected to conduct themselves without injuring others. When they do so, either intentionally or by negligence, they can be required by a court to pay money to the injured party (damages) so that, ultimately, they will suffer the pain cause by their action. Tort also serves as a deterrent by sending a message to the community as to what is unacceptable conduct. Wrongs which are not Tort Following wrongs are not Tort: 1. Criminal wrongs 2. Breach of contracts 3. Breach of trust 4. Quasi-contractual For Example: A enters the land of B without permission of B. A has committed Tort of Trespass. Kinds of tort 1. Tort actionable per se Without proof of actual damage In the case of tort which is actionable per se, the defendant is liable merely because he does a particular act, even though the plaintiff has not suffered the slightest harm. The Act of trespassing on another s land is actionable, even though the plaintiff does not suffer the slightest harm and no actual damage is done to the law. So the, trespass to the person, even though it is only a technical assault which causes no damage, gives rise to right of action. Similarly libel is actionable per se. in these cases, the law conclusively presumes damage. 2. Tort actionable on proof of damage Torts which are actionable only on proof of actual damage - However, in the case of tort which are actionable only on proof of actual damage, resulting therefrom, the defendant will be held liable only if, in consequence of his Act, damage is inflicted on the plaintiff. Thus, the tort of slander is, in most cases, not actionable without proof of special damage. 3. Felonious torts When an act amounts to both a tort and a crime (felony), it is called felonious tort. For example, assault, defamation, malicious prosecution etc. In England, prior to 1967, the doctrine of merger of tort is felony was applied. So, a suit under the law of torts could be filed, unless the person first prosecuted in a criminal Court. In 1967, however, this rule was abolished in England. So a person can always be sued for a tort, although the Act also amounts to a crime, without first instituting criminal proceedings against him. Characteristics or essentials of Tort Following are essentials of tort: 1. Legal injury Legal injury is violation of any of the legal rights or duties recognized by law. 2. Legal damage Legal damage as ingredient of tort is neither actual damage nor it is necessarily pecuniary. Every, unauthorized interference with a legal right or violation of right to property would import legal damage. VLC Publishers Page 3

4 Mogul Steamship v McGregor (1892) Facts: A group of ship owners formed an association to raise their profits. The association agreed to limit the number of ships sent by the association to different ports, to give a 5% rebate on freights to all shippers of stock who dealt only with members, and that agents of members would be prohibited from dealing with anyone in the association if they did not deal exclusively with people in the association. If any member wished to withdraw, they would have to give notice. Mogul Steamship Co Ltd had been excluded. When it sent ships to the loading port to pick up cargo, the association sent more ships and underbid Mogul Steamship Co Ltd. The association also threatened to dismiss agents or withdraw rebates from anyone who dealt with Mogul Steamship Co Ltd. Mogul Steamship Co Ltd alleged there was a conspiracy to injure its economic interests and sued for compensation. Held: The House of Lords, affirming the Court of Appeal's decision, held that the acts were done with a lawful object of protecting and increasing the association s profits. Because no unlawful means had been employed, Mogul Steamship Co Ltd had no cause of action. 3. Legal remedy A person suffering a legal injury and damage can succeed under law of tort only if his case is covered by the recognized tort. The law of torts is said to be a development of the maxim Ubi Jus ibi remedium which means there is no wrong without a remedy. The remedy should be by the way unliquidated damages. 4. Civil wrong Tort is a civil wrong. An act which prima facie (apparently, because something seems true at first although it may be proved false later), appears to be innocent may become tortuous if it invades the legal right of another person. 5. Right fixed by law The right which is infringed must be a right which is fixed by the law, independently of the consent of the parties. Objectives 1. To prevent men from hurting another whether in respect of their property, person, reputation or any other thing else that is theirs. 2. Practical aim of law of tort is to achieve a just settlement and set quietus to disputes by compensating a person for tort suffered by him and making liable another person to pay penalty by way of damages for tort committed by him. Sources of law of tort Following are the main sources of law of torts: 1. Case law or judge made law 2. Statutory provision in different statutes Discharge of torts 3. Latin maxims Discharge is the extinction of tort. There are some circumstances where right of action comes to an end. There are two parties in every case plaintiff and defendant if case falls into the circumstances of VLC Publishers Page 4

5 discharge of tort. The law assumes that plaintiff has suffered no damage. These circumstances are exception to tort. In case of discharge of tort the damages would not be actionable because discharge of tort would not be actionable and extinguish liability of tortfeasor to be sued in an action in tort. Meaning of discharge of torts Discharge of trot means extinction of injured persons of his right to sue and liability of a tort feasor (A party who has committed a tort) to be sued in an action under tort. Modes of discharge of torts A tort is discharged or extinguished through: 1. Death of the parties If an act is done either to the person or property of another for which damages only could be recovered then the right of action dies with the death of the person to whom or by whom the wrong is done. This mode is based on the following maxim: Actio Personalis Moritur cum Pers. Which means a personal right of action dies with the person. If an injury were done either to the person or property of another, for which damages only could be recovered in satisfaction, the action with the person to whom or by whom, the wrong was done. 2. Waiver by election If a man has more than one remedy for the same wrong and elects to pursue one of them, giving up the others the other remedies. So right to sue are waved and liability to be sued would be discharged through waiver of injured person who, having a choice between contractual and tortuous remedies. 3. Accord and satisfaction Accord is Bilateral agreement between injured person and tort feasor by which injured person agrees to forgo his right to sue in tort against offer of compensation offered by tort feasor. The amount of compensation by tort feasor to injured person is called satisfaction. Right to sue and liability to be sued would be discharged when injured person and tortfeasor enter into accord and satisfaction. 4. Release A release is the giving up or discharging of the right of action which a man has or may have against another person. So it is surrender of a right of action against wrong does. Release is open to an injured party to release the wrong doer from liability to compensation. When the following circumstances release is not valid: i. Release executed under mistake ii. Element of Fraud iii. Ignorance of one s right 5. Judgment recover The cause of action against a wrong doer in respect of a wrong is extinguished by a judgment obtained in a court of law. The person injured cannot bring a second action for the same wrong even though it is subsequently found that his damage was much greater than was anticipated when the action was brought. VLC Publishers Page 5

6 6. Limitation The Limitation Act prescribed period with in which action in tort must be brought after which they cannot be maintained by the court of law. 7. Acquiescence (Acceptance without protest/ Agreement with a statement or proposal to do something) Where a person having knowledge of his right fails to get it enforced for a considerable period will be debarred from enforcing it later. It will be inferred that he has acquiesced in commission of the act. General Defence s in Tort Tort is defensible, justifiable and excusable in some circumstances. The result of action in justifications of trot would involve dismissal of action of injured person and exoneration (The condition of being relieved from blame or obligation) of tortfeasor. General defences are in fact justifications of torts which can be pleaded but tort feasor in any case relating to any kind of tort. General rule It is the general rule that he who commits tort is a trot feasor and liable for the tort committed by him. General defence s and exceptions to liability in tort Following are the general defences or exceptions which are also called justifications in tort: 1. Leave and license Harm suffered voluntarily does not constitute a legal injury and is not actionable. This justification is based on Latin Maxim Volenti Non Fit Injuria (a willing person does not suffer any legal harm). A man cannot complaint of harm to the chances of which he has exposed himself with knowledge and of his free will. This justification is also treated under the heading voluntary assumption of risk. So if a tort is committed with the consent of the injured person, it will be justified. Conditions Non-application i. Consent must be voluntary and free ii. Consent must not generally be to illegal acts. iii. Consent of injured person would not operate as justification of tort in rescue cases. Haynes v Harwood (1935) Facts: The Defendant left a horse-drawn van unattended in a crowded street. The horses bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. The police officer was injured Held: The horse owner was liable. It was foreseeable that if a horse was let loose in a crowd, somebody, particularly a policeman under a general duty to assist, would attempt to capture it and might be injured in the process. The defendant could not raise a plea of volenti non fit injuria in this case. His action was an errand of mercy, and it was by reason of that activity that he fell within the categories of persons for whom the defendant owed a duty of care. VLC Publishers Page 6

7 Greer LJ said: It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of a wrongful act 2. Act of GOD Act of GOD is recognized justification in law of torts. An act of GOD is an extraordinary occurrence due to natural causes which is not the result of any human intervention which could not be avoided by any amount of foresight care. There is a difference between Act of God and technology, such as plane crash is not Act of God if it s due to technology for example if you can assess the future failure. 3. Inevitable accident Every person has a right to defend his own person and property against an unlawful harm. This may be done for wife or husband a parent or child, a master or servant. Hence no action lies for an act in the exercise of private defence. Any injury receive by the right of self defence should be regarded as accidental harm caused from a lawful act. The force must be used reasonably for the prevention of harm. 4. Acts of state 5. Private defence 6. Mistake 7. Damage incident to authorizing act 8. Necessity 9. Plaintiff himself a wrongdoer 10. Exercise of common rights 11. Act causing slight harm 12. Judicial and quasi-judicial act 13. Parental and quasi parental acts 14. Executive acts 15. Contributory negligence A doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent could not win in court against a very negligent defendant. Nettleship v Weston [1971] 3 WLR 370 Court of Appeal Facts: The defendant was a learner driver. She was taking lessons from a friend. The friend checked that the defendant's insurance covered her for passengers before agreeing to go out with her. On one of the lessons Mrs. Weston turned a bend, Mr. Nettleship told her to straighten the wheel but Mrs. Weston panicked and failed to straighten the wheel. She approached the pavement and Mr. Nettleship grabbed the handbrake and tried to straighten the wheel but it was too late. She mounted the pavement and hit a lamp post. Mr. Nettleship fractured his knee. The defendant argued that the standard of care should be lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner, he had voluntarily accepted the risk. Held: A learner driver is expected to meet the same standard as a reasonable qualified competent driver. Volenti did not apply as he had checked the insurance cover which demonstrated he did not VLC Publishers Page 7

8 waive any rights to compensation. His damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945 to reflect the degree to which he was also at fault. Comparison between Tort and Crime The roots of crime and tort were same, but with the passage of time both entered into different categories. A crime is a wrong arising from a violation of a public duty. A tort is a wrong arising from the violation of a private duty protecting citizens from harmful acts is basic to an orderly society. To protect citizens, governments pass laws making wrongful acts crimes. A crime can be described as a wrongful act that injures or interferes with the interest of society. However, many acts that result in harm to others are not crimes. Accidentally hitting another car with your own is not a crime, even though it could cause harm. It is a tort. Generally speaking, a tort is a wrongful act that injures or interferes with an individual's person or property. Tort Crime 1. It is a private wrong 1. It is an offence against the society 2. It is an infringement of the private right belonging to an individual. 2. It is an invasion of public rights and duties affecting the whole society. 3. It is the private person who can bring proceedings. 3. The Govt. follows the case on behalf of society. 4. The proceedings can be brought in civil courts. 4. The proceedings can be brought in criminal courts. 5. State only provides a machinery of justice. 5. State prosecutes and plays a significant role. 6. The evidence is weighed on balance of probabilities. 6. Prosecution has to prove the guilt of the accused beyond reasonable doubt. 7. Only damages are awarded as punishment. 7. Punishment is awarded by courts in terms of imprisonment and fine. 8. Necessity is available as a defence in Tort. 8. Necessity is not available in crime. 9. Parties are plaintiff vs defendant 9. Parties are Crown vs accused 10. Intention is not relevant in law of torts as it does not require having bad intention. 10. In criminal law, intention is the crux of the case. Evil intention is the gist of crime. Class activity Discussion based on discovering the meaning of a Tort and the reasons why the law is active in this area. Develop this into discussion based on the idea of why it matters that those with responsibilities should discharge them properly by consideration of what happens when this does not occur. Students should try to write and explain the definition of Tort. Discuss some common examples of tort from daily life with students. Questions from past papers The lecture is about the introduction about Law of Tort, no question from this lecture in past papers. VLC Publishers Page 8