Understanding Tort Law: Available Remedies, Differences Between Civil And Criminal Wrongs, Negligence Claim, Damages Aim And Types Essay.

1. Describe and explain your understanding of tort law together with the available remedies

2. Describe and analyse the differences between civil and criminal wrongs together with examples

3. In order to be successful in a negligence claim explain what the Claimant must prove giving examples of case law and potential defences.

4. What is the aim of damages?  Describe and analyse the different levels and types giving examples.

What is Tort Law?

1. The law of torts is to safeguard the responsibility which an individual of the society has towards another individual notwithstanding any contractual obligations. The breach of the civil rights of another person often results in payment of compensation based on the damages caused to the other person (Oberdiek 2014). The concept of torts arises when one person does not observe due care while discharging his responsibilities towards another and in this process harm is caused to the other person. In England, the civil cases in relation to law of torts are mostly trialed before a judge without a jury. The law of trots covers aspects such as negligence, breach of confidence and nuisance (Houlgate 2017).

Negligence is the a part of the tort law where a party owning a duty of care towards another has negligently made an act or omission which results in the harm suffered by the other person. In order to determine whether a negligent act was committed by a person or not it has to be established by the plaintiff that the person had a duty of care towards him (Witting 2015). Then the plaintiff has to prove the fact that, the person negligently breached the duty of care owed by him and such breach is the direct or indirect cause of the harm suffered by the person.  The court for the purpose of  verifying whether there was an actual breach in the duty of care or not checks that whether a person having a reasonable mind would have done in the same circumstances in order to avoid the injury (Perry 2014).

The person who has suffered the injury is only liable to claim damagers which a reasonable person could foresee and not beyond forseability. The earlier rule where the court provided that if there was a breach in duty of care the plaintiff is entitled to claim all damages suffered by him however remote is rarely used at present (Baker et al. 2015).

If a person has willing suffered injury or has contributed himself towards the injury than the court does not provide him with the total compensation he is entitled to. The court further decides the amount of damages payable to him based on the extent of his contribution towards the injury (RECOURSE and Calabresi 2013).  

A negligence claim can also be made in case of a psychiatric injury caused to a person due to the negligent omission or action. A secondary victim is also entitled to make a claim if the court finds that the test of proximity of perception is satisfied.

The law of torts can also arise from product liability according to which if a business supplies defective products to its consumers it would be liable to pay compensation with respect to the harm caused to the consumer. The same applies in case if occupier’s liability where an owner of a property is liable for the harm caused to the occupier (Ogilvy 2016).

With respect to nuisance, a person has the right to enjoy his property without any hindrance and if such right is disturbed than the person, who has breached the right is liable to rectify his act or omission. Such act or omission is ordered by the court to be rectified by an injunction or specific performance order (Avraham 2015).  

Differences between Civil and Criminal Wrongs

2. Although both civil and criminal wrongs are liable to be prosecuted by the court of law, the aspects, which constitute these wrongs, are different to one another. Criminal wrong is a branch of law whose main purpose is to deal with serious crimes done intentionally such as taking the life of another, steeling, robbery , rape and defamation. Criminal wrongs are actions which have an adverse effect on the society and thus are accounted as actions against the society itself and not an individual or specific group. A person who is accused of committing a criminal wrong is directly prosecuted by the state itself and the penalty with respect to such wrongs are often imprisonment along with financial penalties. The crown prosecution service and the police initiate criminal procedures but these proceedings are always brought under the name of the crown (Mendelson 2014).

There are a few elements, which constitute a criminal wrong. In order to constitute a criminal wrong the elements of Mens rea, which is mental intention to commit the crime, and actus rea that is the physical commission of the crime. For example, a person who decides to commit a murder must have the mental element to do so and the actual physical act which leads to the murder would be the actus rea. It is not necessary that an actual physical act in present to constitute a crime for example in cause of fraud although there is no physical action the act of fraud itself accounts to actus rea (McMahon and Binchy 2013).

The burden of proof in case of a criminal wrong is on the plaintiff. Till the plaintiff proves that the defendant has committed a crime the defendant is held not guilty.

Civil wrong deals with acts or omissions by one person towards another unlike that in case of criminal wrong which is against the society (McMahon and Binchy 2013). The purpose of civil law is to identify the rights and liabilities of an individual or group towards another. Civil wrong mainly comprises of contractual breach and breach of a duty of care.

In case of a contractual breach, it has to be determined by the court that whether or not a contract was formed between the parties based on its essentials such as offer, acceptance, consideration and capacity. If a contract was formed the court analyses its expressed and implied terms to determine the breach. For example a seller contracted to sell specified goods at a certain price but instead provided other goods to the buyer (Luppi, Parisi and Pi 2016).

In case of the breach of the law of torts, the court has to analyze elements such as the duty of care, its breach, damaged caused and remoteness of damage. If the court is satisfied with, the presence of all the elements of torts than it can establish that a person’s right was breached (Okrent 2014).

In case of civil wrongs the court generally provides damages such as monetary compensations, injunction, specific performance, rescinds, or full or part of contract.

Elements of Negligence Claim

Thus, there is a clear difference between civil and criminal wrongs in terms of required elements of formation, type of damages involved, seriousness and impact on the society (Cooter and Porat 2014).

3. The concept relating to negligence was first tossed in the case of Donoghue v Stevenson [1932] UKHL 100. In this case the consumer had suffered injury resulting from the negligence act of the manufacturer. The court in this case provided four basic elements, which constituted the tort of negligence. They include a duty of care, which is owed by the defendant to the plaintiff, a breach in relation to such duty, damaged caused because of the breach and finally the remoteness of the damaged caused. The court established in this case that a person whose actions have impact on another person owes him a duty of care (Eades 2016).

The breach of duty of care is identified by the court by using a test known as the objective test. According to this test, the court considers the situation and analyzes that in the same situation a reasonable person would have taken the necessary precautions needed to avoid the injury caused to the plaintiff. This test had been provided through the case of Vaughan v Menlove (1837) 3 Bing. N.C. 467.

The next step which the court applies in order to determine causation of the harm is the application of the “but for” test. According to this rule, the court analyzes the situation and determines that if the defendant did not commit the negligent action than the plaintiff would have suffered the injury or not (Shulman et al. 2015). For example if a doctor is negligent with respect to a patient who is suffering from terminal illness and would have died any way, the doctor cannot be held liable for negligence. The rule was provided in the case of Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428.

Once the element is established, the court confirms that the negligent act or omission has been committed and moves forward to determine the remoteness of damages applying the test of proximity.

There are certain defenses available to the defendant in case the tort of negligence has been established. One of such defense is that of contributory negligence. According to this concept the damages paid to the plaintiff is determined according to the extent of his own contribution towards the injury caused to him. The court may even cancel out the claim if it is satisfied that the plaintiff has made a 100% contribution towards the injury. The concept provides relief to the defendant and protects them from being unnecessarily penalized due to the actions of other (Daye and Morris 2016).

Other defenses, which may be used by the defendant in case of negligence, are willful intoxication by the plaintiff which lead to the harm and a professional having sufficient knowledge about an aspect does not use it and as a result suffers the harm.

4. Damagers in tort law are awarded to the plaintiffs based on the extent of harm suffered by them due to the actions of the defendant. The main purpose of the court with respect to damages in torts is to put the plaintiff in such a position, which he would have been if the negligent act had not occurred. The court has no intention to provide damages to the plaintiff in case of torts that would make his original position better. Thus, the court only takes into account the original position of the plaintiff and not his position after the harm has been caused in order to provide damages. In other words damagers in torts can be defined as the difference between the original position of the plaintiff and the injured position of the plaintiff as provided by the case of Athey v. Leonati, [1996] 3 S.C.R. 458.

Aim of Damages and Types

The purpose of damages with respect to torts is not to punish the wrong doer but to compensate the loss, which have been suffered by the victim. The court in most cases provide the total amount of loss suffered by the victim unless it identifies a case of contributory negligence according to which compensation is based on the extent of contribution by the plaintiff towards the harm himself. It was provided in the case if M.B. v. British Columbia, 2002 that an compensatory awards must be fair for both the plaintiff and the defendant and the main purpose of such award must only be compensate the victim and not punish the defendant (Osborne 2015).

A claimant may therefore be angry on the defendant, as because of his action the claimant has suffered injuries. However, he would not be able to claim extra rewards more than the loss suffered by him in case of torts. Damagers in torts are decided based on the duration and severity of the damage. The following are the types and level of damages, which are provided in case of torts (Mendelson 2014).

Pecuniary damages: these damages are provided to the plaintiff when they have suffered a monetary loss for example in case of an accident pecuniary damages may account to vehicle replacement cost, medical expenses, lost wages and repair cost of property damaged.

Non-pecuniary damages: Damages, which are provided in relation to sufferings and pain, which prevent the plaintiff from enjoying life properly, are known as non-pecuniary damages. For example, the pain symptoms or mental injury caused due to an accident or witnessing an accident. It was provided by the case of Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 that there is no specific rule which can be utilized in order to convert pain and sufferings into pecuniary damagers. The conversions of such damages are usually based on the extent and duration of pain and sufferings and the circumstances in which the injury has been caused (Ogilvy 2016).

Special damages:  The damages, which are incurred by the claimant with respect to the trial and the pre trial procedure also known as pocket expenses may be provided to him by the court. The defendant can also claim these damages if the plaintiff has alleged him wrongfully (Avraham 2015).

References:

Avraham, R., 2015. Does the Theory of Insurance Support Awarding Pain and Suffering Damages in Torts?.

Baker, C.D., Blay, S., Corbin, L.C. and Gibson, A.J., 2015. Torts law in principle. Lawbook Co.

Cooter, R.D. and Porat, A., 2014. Getting incentives right: improving torts, contracts, and restitution. Princeton University Press.

Daye, C.E. and Morris, M.W., 2016. North Carolina Law of Torts. LexisNexis.

Eades, R.W., 2016. Torts Involving Personal Property (Vol. 1). Jury Instructions on Damages in Tort Actions.

Houlgate, L.D., 2017. Family Torts and Remedies. In Philosophy, Law and the Family (pp. 143-168). Springer International Publishing.

Luppi, B., Parisi, F. and Pi, D., 2016. Double-edged torts. International Review of Law and Economics, 46, pp.43-48.

McMahon, B.M. and Binchy, W., 2013. Law of torts.

Mendelson, D., 2014. The new law of Torts. Oxford University Press.

Oberdiek, J., 2014. Philosophical Foundations of the Law of Torts. Oxford University Press.

Ogilvy, J.P., 2016. Inside Torts: What Matters and Why. Wolters Kluwer.

Okrent, C., 2014. Torts and personal injury law. Nelson Education.

Osborne, P., 2015. The law of torts. Irwin Law.

Perry, S., 2014. Torts, Rights, and Risk. Philosophical Foundations of the Law of Torts, pp.38-64.

RECOURSE, C. and Calabresi, G., 2013. AMERICAN ASSOCIATION OF LAW SCHOOLS TORTS & COMPENSATION SYSTEMS PANEL.

Shulman, H., James, F., Gray, O.S. and Gifford, D.G., 2015. Law of Torts: Cases and Materials.

Witting, C., 2015. Street on Torts. Oxford University Press, USA.