INTRODUCTION TO THE LAW OF TORT


Definition


Tortious liability arises from the breach of a responsibility enforced by law: this obligation is typically due to individuals. The claim for damages that are not liquidated is rectified.

Winfield in Rogers, W.V.H., Winfield and Jolowicz on Tort, 17th ed., 2006, p.5


Terminology


Tort law discusses numerous situations in which legal action arises from violating a common obligation set in civil law. It doesn't matter if you're an innocent pedestrian thrown to the ground by a motorist who is speeding or a pop artist who is mistreated by a major newspaper; it's the tort law you will go to for help. The name of a tortfeasor refers to someone guilty of the tort of committing it. The other person is referred to as an innocent or wronged individual. In certain circumstances, you can prove an offence without proving that you've suffered damages, and the tort is considered to be like an action (i.e., it is not a separate issue). It is essential to show that you've suffered losses in other instances. If the court decides that a tort hurt you, you will get money damages in both cases.


Torts are distinguished from other infractions


Torts are easy to tell apart from other kinds of actions that are against civil law.


Crime


Criminal law deals with the relationship between a person and the state and is a type that is part of public law. Tort law regulates the relationship between individuals and is a form of the legal system that is private. When the courts rule that a crime was committed, it is determined if the character of the offence is sufficient to punish the offender. The notion that punishment must match the offence might oppose the tort-related rule that how much compensation to match the offence.


Contract


Suppose courts decide to arbitrate disputes arising out of violations or breaches of contracts. In that case, they will uphold obligations voluntarily performed by a particular party due to a different party. Tortious duties have broad applicability and govern our behaviour regardless of whether we agree. As you learn more, you'll find that contract law and tort law overlap in many ways, such as with negligent negligence and product liability. It is crucial to remember that the legal actions of contract law and tort law can be mixed. In these cases, "the law of obligations" is applied.


Constitutional law or administrative law


Constitutional law focuses on the state's structure, the functions played by institutions within the state, and the relation between people and the government. Administrative law deals with the decision-making processes of public officials or authorities that affect individuals.


Land Law


Fundamental property law deals with the ownership, control and management of land, the acquisition or transfer of land; rights to servitudes and land, and that landlord/tenant relation. Land laws are commonly utilized in tort cases, such as when the prescription is used to defend against nuisance cases.


Equity


Equity law was created as an addition to common law to address circumstances that were not sufficient. The principal contributions to equity include the remedies for equitable claims like specific performance, trust, and collateral of the redemption mortgage. Injunctions are an equitable remedy that is especially common in irritation entitlements. Equity law was created as an addition to common law to address circumstances that were not sufficient. The principal contributions to


The importance of public policy and protected interests


Tort law is based on fundamental principles made by the judiciary and Parliament. You can also see the unnoticed impact of the policy in numerous landmark cases over the years, including the question of insurance, "crushing liability" for the plaintiff in retributive justice, and deterrence. The most common sign of the policy is the phrase "floodgates" of litigation that judges, at various periods, decide to close or open based on the mood of the day.


In contrast to the case of McLoughlin v. O'Brian (1983), AC 410, The Case of the Lords, the treatment method for what is known as "nervous shock" (a medically recognised kind of mental condition) differs. The House of Lords may have unleashed a torrent of litigation by allowing the plaintiff to prevail despite her absence at the time of the occurrence. In the case of Alcock v. Chief Constable of South Yorkshire [1991] 4 All ER 907, these "flood gates" were carefully managed. When cases are hard to make sense of (and nerve shock is one of these), the key to figuring out where apparent contradictions in law reports come from is to look at the rules.


Fast liability


In most cases, in addition to demonstrating that an individual (the tortfeasor) did a specific act, it is also essential to demonstrate that the individual committed the conduct while exhibiting a certain mental state. This could be the tortfeasor's intention or intent, which is when the tortfeasor did something on purpose and knew exactly what would happen; negligence, which is when the tortfeasor doesn't care if their actions will have inevitable results; or malice, which is when the tortfeasor does something to hurt someone else or for unfair reasons.


For more information, see Bradford Corporation v. Pickles (1895), AC 587. For example, in the 1930s, if someone fired a weapon on another person's property and it injured animals that lived there, it was not considered to be a criminal act (for more information, see Hollywood Silver Fox Farm v. Emmet [1936] 1 All ER 825 and Christie v. Davey (1893) 1 Ch. 316. This was because, in the event of a case of defamation, the proof that a written statement has been motivated by malice may be used to invalidate fair statements as well as the qualified right to be heard. The existence of malice may affect the total amount of damages awarded to victims.


Why is there a need for fault?


There is a myriad of plausible reasons for the necessity of blame. In the most basic sense, the concept relies on social perceptions of what constitutes' just. This theory says that it is only fair to be held responsible for (and therefore punished for) actions or omissions that are in some way blameworthy in the sense that they cause harm to others as they were meant to.


A more advanced spin-off of this argument is based on the deterrence effects of a system that is in error. Responsible behaviour can only be encouraged when accountability is reserved for reckless behaviour. So, individuals are held to account for what they do. People who advocate for fault liability are quick to point out that assigning blame by way of financial awards only shifts responsibility from one person to another. It doesn't remove the burden. They believe that it is better to pursue fault-based liability in these situations. The most appropriate alternative, given that, in the end, there is a cost to be paid by the person who was responsible.


For all the arguments, you can find strong counterarguments. According to those who deny the concept of fault responsibility, the system does not adequately reflect the arbitrariness of our modern world. Minor violations of the Highway Code are not considered "blameable." This is because the Highway Code is hardly blameworthy. After all, its supporters think of it. In terms of securing punishment for irresponsible behaviour, this type of punishment is ineffective due to insurance against negligence. Still, it's also a matter of debate whether the tort system is trying to accomplish this goal. Criminal laws are intended to ensure that illegal acts are punished. But should the tort system be infringing on this space? Does it make sense that someone is punished twice under the criminal law and once under the tort law? These issues have implications for the dissuasive effect of blame liability.


In addition to these fundamental objections, there are added concerns regarding the cost associated with an English tort law regime and the inflexibility of the compensation system. According to current laws, it is possible that whether or not someone who has been injured gets damages will depend on several aspects that aren't related to the severity of the injuries. Finding fault is a challenging task (particularly in negligent clinical care). Additionally, the amount of compensation can be a source of controversy, and a damaged reputation usually causes more extreme damage than horrific physical injuries. Regarding the argument that "floodgates" are a valid reason, it is said that, while it is a valid argument, "fault isn't a rational or effective way to limit the number of claims."


Strict Liability


Certain torts can be committed when the act or omission occurs without the need to prove a specific mental state. These types of situations are known as "strict responsibility torts." Some of these are taken from the courts, such as those in the Rylands case, Rylands v. Fletcher tort, which Mr. Justice Blackburn developed in a case under the same name. Other parts of these are derived from other sources. The law was changed to include new requirements, such as those from the Consumer Protection Act of 1987, about how broken things should be. It is essential to understand that liability isn't in absolute terms in all cases because defences exist. The main reason for the absolute obligation of liability is to ensure that a plaintiff can't get out of his responsibility by showing that he did everything he could have done.

Different ways of compensating


Although it isn't extensively covered in this course, it's vital to understand that, in reality, tort law isn't the only way to distribute compensation to the victims of accidents. There are many ways to make sure this happens. Social Security, the Criminal Injuries Compensation Scheme, insurance, special catastrophe funds, and no-fault liability are some of the programmes that fall under this category.


The Medicare and Social Security Programs


Among the many available forms of assistance, some examples are disability benefits, incapacity benefits, unemployment benefits, and income support. Accident victims who suffer injuries that prevent them from working are eligible for compensation through social security programmes. Trying to get compensation for damages through the civil courts for tort claims is more complex than getting these advantages, which are available to people injured as a result of an accident. The "double recovery" problem occurs when victims are awarded compensation for the same wrongdoing on multiple occasions. If this is the case, it may be prevented by utilising the Compensation Recovery Unit, which is a procedure for recovering money awarded to a court case winner.


Compensation for victims of crime


The Criminal Injuries Compensation Scheme provides compensation to victims of violent crime and those harmed in the course of preventing crime. This scheme offers a rate that is based on the amount of suffering, pain, and loss of enjoyment that is given. The Criminal Injuries Compensation Authority runs it. People who get hurt and can't work because of it can get money to make up for their lost wages, up to a specific limit.


Insurance


Accidents occur most frequently in the workplace and on highways. The law requires insurance through an act referred to in the Road Traffic Act 1988 and the Employers' Liability (Compulsory Insurance) Act 1969. A lot of households have insurance policies for their households. This is why insurance is expected to play a more significant role in paying for damage to people and property.


Special Funds


When disasters are terrible, like the King's Cross Underground fire, special funds are often set up to help the victims.


No-fault liability plans


Certain countries have experimented with no-fault policies, including New Zealand and Sweden and a handful of American states. The majority of them resulted from accidents on the road, but Sweden's coverage covered the controversial field of medical negligence cases. It is worth noting that the New Zealand Scheme was dropped due to its high tax cost, and the beginning tort system was reinstated.


The Future


With the variety of how victims are paid for injuries suffered from accidents and the failure of tort law in terms of distributing the compensation, it could be expected that reform was top of the list for political considerations.


The reverse is also true. At the end of the 1970s, The Pearson Commission published a wide-ranging report that, though falling just short of a suggestion to abolish the present system of liability for fault, however, it did state the need to move away from torts in favour of the more widespread use of social benefits. These plans did not receive the attention of government officials at the time of publication and seemed unlikely to be revived shortly. With the variety of how victims are paid for injuries suffered from accidents and the failure of tort law in terms of distributing the compensation, it could be expected that reform was top of the list for political considerations.


The Human Rights Act of 1998


The Human Rights Act (HRA) 1998 was passed in October 2000. It put into law the main parts of the European Convention on Human Rights. The courts are now required to apply the laws in accordance with the Convention according to Section 3 of the Act. The court examining a case regarding the scope of Convention rights must, according to section 2 of the Act, consider the rulings from the European Commission and European Court of Human Rights (ECHR). Effects of this HRA 1998's tort laws is hard to determine with absolute certainty, even though the tort law field is a fast-growing area. In the future, the things we learn in this course will have to be compared to the HRA 1998 and talked about throughout the manual when they are relevant.


Here are a few private nuisance cases involving human rights that are currently going through the courts so you can get a quick idea of what's going on. In the case of McKenna v. British Aluminium Ltd. [2002] Env LR 30, the judge ruled that even though the plaintiffs couldn't legally sue for private nuisance because they didn't have a property interest, they could still sue for trespassing, they might be able to claim in accordance with the HRA 1998, even if they do not possess any ownership rights. The defendants said that Article 8 of the European Convention on Human Rights gave them the right to protect their privacy when it came to their children and their family life. Be aware that McKenna is an initial instance decision regarding an application, not a verdict of a full trial. As a result, the current legal position remains unchanged.


Its article 10, which guarantees freedom of speech, has become relevant in the case of defamation, which aims to safeguard reputation. Article 8 guarantees privacy protection (a right not recognised by English law) and requires courts to resolve the tension between freedom of expression and privacy. The issue is where public life ends, and private lives begin. There are numerous fascinating cases regarding this issue, including A v B (a business) [2002]. 2. Campbell v. Mirror Group Newspapers [2004] and All ER 545 (UKHL 22). In the most recent case, actress Naomi Campbell sued the Daily Mirror for breach of confidence after the newspaper published photos and stories that said, contrary to what had been saying before, she was addicted to drugs and often went to Narcotics Anonymous meetings. The House of Lords agreed that what she did was wrong because it went against her privacy rights. In Douglas v. Hello! Ltd. (2001) 2. WLR 992 (Section 17) looked at if HRA can decide on private and public claims.


Article 6-Right to a Fair Trial (especially about throwing out the actions) is another ECHR article related to tort law and law. Article 2 is about the right to life (Airedale NHS Trust v. Bland, 1993, 1 All ER 821), and Article 3 is about the right not to be mistreated. Article 5 is about the right to freedom and safety.

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