What Constitutes Tort Law - Essay Example

? TORT LAW Tort Law A tort is a civil- wrong other a breach of contact or trust. Unlike crime which is a wrongagainst the state, a tort is against an individual or a group of individuals or a group of individuals. This is a framework of individual rights, responsibilities and actions that is applied by courts in their civil proceedings to relieve the persons who have suffered harm as a result of wrongful acts caused by others. The person suffering from the tortuous act is called the plaintiff. On the other hand, the person responsible for causing the injury and therefore, held liable responsible for the damage is called the defendant or the wrongdoer (Elliot & Quinn 2007). To constitute a tort, three things must occur: Some wrongful act or omission by the defendant; that is, a person who is being sued for his alleged wrongful act. Legal damage to the plaintiff; that is, some of his legal right is violated, for instance refusing him to vote without justified reasons. The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages (Turner & Hodge 2007). In every action of tort, the following three elements must critically be examined. First, the defendant must prove that the plaintiff had a legal duty to act in a specific manner so as to avoid damage. Second, the plaintiff must illustrate that the defendant breached the legal duties by declining to follow the appropriate behavioral actions. Third, the plaintiff must clearly showcase the implication that he suffered the injury or otherwise the damage directly from the breach by defendant (Elliot & Quinn 2007). A suit from a tortuous act enables the person who has caused the injury to assume the responsibilities of the injured party. Consequently, a tort suit is successful if it results not in a sentence of punishment, but in a judgment based on liability. Such judgments necessitate the financial compensation of the plaintiff by the defendant. As a matter of principle, the compensatory damages are awarded to the plaintiff. Though rare, punitive damages may also be awarded to the plaintiff by the court. While in other instances, the plaintiff may be awarded an injunction, an order by the court that aims at preventing the plaintiff from further injuries or inversion of the property rights by the defendant (Goldberg & Benjamin 2010). Furthermore, the law of tort does not recognize any type of injury as a foundation of claim. For instance, tort law does not recognize an injury suffered during a football match. The reason behind this is lack of the legal duty on any individual player. Tort classifies duties into two general categories: The duties not to injure ‘full stop’-regarding the commission of activities that the law recognizes as hazardous; and the duties not to injure negligently, recklessly, or intentionally. Strict liability regulates the behaviors observed in the former instance of duties, while fault liability governs the conduct in the later form of duties (Elliot & Quinn 2007). A Brief From: To: Date: CASE 1 Facts Diane owns a garden centre in a rural area. She specializes in the growing and selling orchids, which need to be reared in a extremely warm climate. She constructed a number of greenhouses which are all heated with large storage tanks containing heating oil. Due to internal corrosion of the tanks, the oil escapes and contaminates some vegetables growing on a farm belonging to Juliana, her neighbor. The oil also escapes onto the public highway and Juliana, who is driving along the road at the time, skids and crashes her car. She suffers a cut and a broken arm. Issues 1- What are the elements of the rule in Ryland v Fletcher? Whether there is a possibility that she could sue under this rule or not 2- What type of damage is recoverable under this rule? 3- How is the liability for fire assessed? 4- What are the elements for private nuisance? Does she, as a neighbor, has a possibility of being successful in this course of action? 5- What damages are recoverable under this tort? 6- Briefly explain if there are any other torts under which she can sue Diane. 7- Which in your opinion would be the most effective course of action to take to gain the most effective remedy? (Assume all 3 causes of action are possible). Rule The person who, for his own purpose, brings to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his own risk and if he fails to do so he is liable for damage naturally arising from the damage. This rule has been held to include the escape of many things such as poisonous vegetation, electricity, fumes and even noxious persons. It is applicable under the following necessary conditions: First, there should be an escape from the defendant’s land to a place outside his occupation. Second, the use of the land must be normal considering all the circumstances (Turner & Hodge 2007). Analysis The rule of Ryland v. Fletcher (1868) regards strict liability. It states that when a person who occupies a piece of land, uses anything on it that is likely to result into damage upon its escape, and continuously keeps it on the land, will be liable for any damage that could result from the escape. This rule has been held to include the escape of many things such as poisonous vegetation, electricity, fumes and even noxious persons. It is applicable under the following necessary conditions: First, there should be an escape from the defendant’s land to a place outside his occupation. Second, the use of the land must be normal considering all the circumstances. It is immaterial whether the person is aware or not aware of the danger at the time when he brings dangerous things to his land and uses them (Goldberg & Benjamin 2010). However, a person is not liable for the damage if: The damage arises from an act of God, that is, acts which cannot be prevented by any amount of human foresight or care; if the occurrence takes place as a result of the plaintiff’s own fault; and in the case of an artificial work maintained for the benefit of both the plaintiff and the defendant. It is critical to note that Rayland sued Fletcher on grounds of Fletcher’s negligence though; he was not himself negligent as he had hired competent contractors to construct the reservoir. He was not even made aware of the mess by the contractors. It is the contractors that were negligent by not acting promptly to prevent the might be future damages that could arise from the mess they had detected (Turner & Hodge 2007). Fletcher’s case was not subject to vicarious liability, in that the contractors were not his employees. Vicarious liability is normally based on the rule of common sense as employees are usually people of meager means and it is ,therefore, only fair that the injured person is allowed to recover damages from the employers. Thus where there is a relationship of master and servant, the former is always liable for the torts committed by the latter in the course and scope of his duties. A master is liable for every wrongful act of the servant if committed in the course employment even without any express approval by him. It is immaterial that the alleged act was not done for the benefit of the master. But the master is not liable for torts committed beyond the scope of employment unless he has expressly authorize such acts or subsequently ratifies them (Elliot & Quinn 2007). The tort of negligence is a breach of duty caused by the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which the neglect plaintiff has suffered an injury to his person or property. Negligence in tort has to manifest the following three ingredients, and unless all of them are present, the plaintiff is not entitled to succeed in his action. The plaintiff must prove that; the defendant owed him a duty of care; there has been a breach of that legal duty, and; the plaintiff has suffered an injury to his person or property. The damages recoverable under this case are unliquidated, that is, the court has the power to fix them (Turner & Hodge 2007). Private nuisance constitutes using one’s own land in such an unreasonable manner to cause interference with another person’s use and enjoyment of his own land. It is an unjustifiable act affecting some particular individual or individuals as distinguished from the public at large. It cannot be made an object of criminal proceedings, but may be a ground of civil actions for damages or an injunction or both. It is crucial to note that what may be a nuisance in one place may not be so in another (Elliot & Quinn 2007). Public nuisance is an act which interferes with the enjoyment of a right which all members of a community are entitled to, such as the right to fresh air, travel on the highways among others. It is basically a crime actionable at the suit of the Attorney-General on behalf of the public at large, and the remedy for it is by conviction or injunction or abatement. Public nuisance does not create a civil action for any person unless she proves a particular injury to herself beyond that which is suffered by the rest of the public. Juliana suffered a cut and also broke her arm. Diane owes all users of the public road a duty of care. By keeping the oil tanks in her compound, she compromised the safety of the users of the road when her oil spilled onto the road causing nuisance to the users. Juliana particularly, suffered private nuisance as a result of the spillage (Turner & Hodge 2007). The most effective cause of action that could give the most effective remedy is private nuisance. Here, she has all rights to compensation. Under the rule of Rayland v Fletcher, the elements of negligence may not be fully determined. Similarly, taking the option of public nuisance though may compensate her, but not exhaustively, part of the damages will benefit the community (Turner & Hodge 2007). Conclusion Juliana can sue Diane under the rule of Rayland v Fletcher, private nuisance and public nuisance. Advice Juliana should use the three platforms to express her claims. She should try as possible to show that even though, the highway is a public property, she should prove that she had suffered more than the rest of the public at large. Case 2 Facts Maria and Ahmad, who are solicitors, are both candidates standing for parliamentary election. During a recent public debate at the Kensington town hall, Maria loses her temper and starts screaming and waving her arms at Ahmad. She alleges that he had accepted bribes and was unfit to be a solicitor or a Member of Parliament. Ahmad responded by slapping Maria on her face, saying she was out of control. Issues 1-Can Maria seek a civil action against Ahmad concerning the slap or not? What possible defense can Ahmad raise? 2- What legal action can Ahmad take against both Maria and the Chronicles? Explain slander and against whom can this action be taken? What does actionable per se means? Explain libel and against whom can this action be against.. What possible defenses can both Maria and the Chronicles raise? Rule and Analysis This case constitutes the tort of trespass on persons, battery and the tort of defamation. Torts are many and various, ranging from trespass to defamation, but the common string runs through all, that every tort is basically a civil wrong for which the remedy is a common law action for unliquidated damages, that is, the courts assess and award the damages. Battery is the actual unwarrantable striking of another person or a mere touch in a rude manner, pouring water on or spitting on another person’s face. It is immaterial whether the defendant applied force directly or indirectly against the plaintiff. Not every bodily contact is battery this facet necessitates a critical examination of the intentions of the defendant at the time of the commission of tort and the prevailing circumstances (Elliot & Quinn 2007). Private defense as a remedy guarantees an individual rights to defend himself, his property or members of his family provided he has not used excessive force to the provocation or the danger he apprehends. Ahmad committed the tort of trespass on persons, battery upon the commission of the tort of defamation by Maria. Therefore, it is the reaction of Maria that provoked the action by Ahmad. Defamation violates the right of reputation. Consequently, reputation has been acknowledged as an inherent right of every individual. It therefore, follows that a man’s reputation is considered his property, and if possible, more valuable than his other property (Elliot & Quinn 2007). The tort defamation consists the publication of a false statement regarding another person without lawful justification which tends to lower his reputation in the estimation of the right- thinking members of the society; or which causes him to be shunned or avoided or has a tendency to cause harm to him in his place of work, the work itself or in his dealings in the business transactions. Defamation can be committed either through speech, writing or any other means that is equivalent to the stated instances. The wrong itself manifests itself in two forms: libel and slander (Goldberg & Benjamin 2010). A defamatory statement is said to be libel if the defendant expresses it in a permanent form. The permanent form exists when the defamatory statement is done through writing, carving, radio and television broadcasting among other forms relevant to this nature. On the other hand, slander is essential in that it is a temporary form of defamation. Thus, slander is not transferred in forms that posses the long lasting effect. Such forms may include verbal statements or even the mere gesture aiming to injure the reputation of the plaintiff. For a statement to qualify to be defamatory, the statement complained of must be false, defamatory in nature, referred to the plaintiff and published (Elliot & Quinn 2007). Yesterday Ahmad appeared in the local magistrates' court where he was found not guilty of assault. The Nottingham Hill Gate Chronicles, a local daily newspaper has today reported the court case under the headline 'Local Candidate Punches Rival' with a prominent photograph of Ahmad. In small print it was made clear that Ahmad had in fact been acquitted. Ahmad believes that his professional standing has been damaged and that his chances of success in the election have been ruined by Maria and the Nottingham Hill Gate Chronicles. A slander is a publication of a false and defamatory verbal statement tending to injure the reputation of another in the eyes of the right thinking members of the society. A slander, in its nature, is not of lasting effect and, therefore is not actionable per se, that is, the plaintiff has to prove actual damages suffered by him in order to succeed in recovering damages. In the case of Ahmad v Maria above, Maria publicly announces her claim that Ahmad had allegedly accepted bribes. She does this by, shouting out her claim. Due to this, Ahmad could be viewed as corrupt by the members of the public who were in attendance at that particular time. Ahmad can therefore exercise his legal right to sue Maria in order to recover damages incurred as a result of Maria’s malicious action (Elliot & Quinn 2007). A libel is the publication of a false and defamatory statement in print or any other permanent form. The prints must have been freely exposed and circulated to the public domain. A libel is actionable per se, that is, one does not have to prove actual damages in order to succeed in an action against a libelous action (Turner & Hodge 2007). In this case, The Nottingham Hill Gate Chronicles is a public news paper they put in prints a prominent picture of Ahmad, putting alongside it a libelous heading. This could be considered as a libel in the sense that the printouts were generally circulated to the public. Ahmad can opt to base his case on this libel to bring forth an action for damages despite the fact that he cannot prove the actual damages therein (Goldberg & Benjamin 2010). In addition to denying the publication and defamatory nature of the statement, Maria and the Chronicles can take other defenses for defamation. First, truth or justification: Maria can justify her statement and once it qualifies to be the truth, the essential aspect of defamation shall cease to exist. This will also enable the Chronicles to escape the concept of publication of a false statement. Second, fair comment: The Chronicles can make a fair comment on the matter as it concerns the interest of the public. A fair comment on such matters of public interest or work of art is not libel unless it is written imperatively and maliciously. Third, apology; The Chronicles may make offer of amends of the actions contained in the newspaper. They may write another newspaper on the same issue to counteract its effect on the peoples. For instance, they may write that the publication was innocent, without malice or gross negligence (Elliot & Quinn 2007). Advice Ahmad should be ready to face the tort of trespass on persons, battery. He should insist that he never used excessive force. Otherwise, he should emphasize the magnitude of the defamatory statement in his political life. Bibliography Elliott, C., Quinn, F. 2007. Tort Law. London: Pearson Longman Goldberg, J.C.P. & Benjamin, Z.C. 2010. The Oxford Introductions to U.S Law Torts Paperback. London: Oxford University Press Turner, C. & Hodge, S. 2007. Unlocking torts: Unlocking the Law Series. (2nd Ed.). Hodder Arnold APPENDIX A list of common laws and statutes Reynolds v Times Newspapers Ltd and others [1998] 3 WLR 862, [1998] 3 All ER 961, [1998] EMLR 723 Court of Appeal (Civil Division) LaChance v. Boston Herald, Inc., 78 Mass. App. Ct. 910 (2011) Morales v. Leone, U.S. Dist. Ct. S.D.N.Y. October 5, 2000 Tsachalis v. City of Mount Vernon, 690 N.Y.S.2d 746 (A.D.N.Y. 1999). Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53 The Trade Disputes Act 1906 (6 Edward VII, c 47) The Crown Proceedings Act 1947(c. 44) Trade Unions Act 1927 Crown Proceedings (Armed Forces) Act 1987 Read More