Tort Laws that Covers Civil Cases - Essay Example

TORT LAWS Tort law is a set of laws which covers civil cases. Under the tort law, if anyone suffers a legal, economical or physical harm, she or he may be entitled to file a suit which when considered to be valid; the damages may be awarded to the victim in order to compensate for his or her crimes. Tort laws are the laws that provide remedies to the individuals harmed by the actions of their adversaries. The tort claims mainly involves the state laws and are based on legal principles that ensure that the involved individuals are liable for the consequences of their bad conducts if it resulted to injury to others. Tort laws can mainly be divided into three parts including negligence torts, strict liability torts and intentional torts. The intentional torts are offences that are committed by an individual who intends to harm as he commits the act knowing that injury would be the result of his or her act such as an assault. On the other hand, negligence is a type of tort that results unexpectedly. The action is normally not intended to harm while the actor does not know the result of the act. In the negligence act, the action leading to injury is not intended unlike the intentional tort. The trespass of land and negligence are different from nuisance case. For instance, in the nuisance cases actions deal with repetitive injuries while the trespass and negligence actions offer relief even if the injury resulted from one event. Nuisance A tort law covers issues of nuisance which include the loose livestock and noise pollution. In other countries, the industrial pollution and toxins release are covered under toxic torts. This allows individuals and organizations to bring suits against the polluting companies. Nuisances are said to be challenging due to the changing definition. Private nuisance is considered to have a continuing activity rather than an isolated event. It had been suggested that the two torts should be merged because their distinction is minimal mainly after Lord Goff’s statement in Cambridge water. In addition, some rules have been criticized as they complicate the law and develop uncertainty. In the case of nuisance, the authorizer of the nuisance for example the landowner can be sued in cases he or she had foreseen that the way of using the land would constitute a nuisance. In case of children, they may be considered to be under someone’s control and he or she would be sued instead of the children. Lord Goff stated that the creator of nuisance should always be sued. The creator therefore would not have an interest in land as with the claimant case. However the claimant would use all ways possible in order to stop the nuisance, and the owner of the land should be sued as he or she has control over the land hence he or she is capable of stopping the nuisance. Negligence Most of the law cases deal with the issues arising in form of liability in the tort of negligence. The establishment of damages is necessary for the liability in negligence. How is pre-CLA case law used to interpret the CLA? The pre-CLA case law is mainly used to interpret various aspects of civil liability acts. For instance, unanimous judgment can be imposed in a person considering the interpretation of certain key phrases used in the Civil Liability Act. The term calculus of negligence is a phrase used to describe a process used to determine whether a legal duty of care has been breached. It is mainly used to refer to the calculation since the court balances the factors identified in both hearing and other factors in order to draw a conclusion whether a reasonable person would have taken precaution. On the other hand, the standard of care is a phrase used to mean the degree of care that a reasonable and prudent person should take in similar circumstances. Causation Most courts claim to understand and approach the matter of causation in the common sense way, avoiding the considerations of philosophy and strict logics. This policy helps mainly in determination of difficult issues. The ‘but for’ test is normally engaged in investigation of causative links between damages and links. The but for can be an inadequate device to settle dispute in scenarios such as, where there are many concurrent causes of a damage  and each are sufficient on their own to produce the end result. In this situation but for test would cancel out the causes of each. Another scenario is where there is an act or event that causes damage. The law has therefore come up with a different approach in which the supervening event was natural, for instance. The affect of CLA in but for test: by determining the liability for damages for the harms caused by the faults of someone, the plaintiff normally has the onus of proving the balance of probabilities of facts that are relevant to the issue of causation. The difference between the established category of duty and novel duty is that the established category of duty of care ought not to cause economic loses due to negligent acts because courts are very reluctant to construct them. On the other hand, in the novel duty, the duty of care not to cause pure economic loss due to negligent act but should be found by applying appropriate foreseeable test.  In order to determine whether the novel duty exists, the high courts use the limiting test which is the most current test. There are some policies which include intermediate liability, interference with contract law and interference with a lawful commercial activity that make courts reluctant to find a novel duty. The three policies need to be considered in order to determine whether a court should impose a novel duty of care in relation to lose of economy caused by a negligent act or not. A duty should be imposed on a defendant to control the third party when he incurred pure economic loss due to lack of knowledge. The duty should mainly be imposed where a body of law cannot effectively deal with an economic loss. A duty can become non-delegable when courts are reluctant to impose a duty in a tort. Non-delegable is a duty that ensures that care is taken by the delegate. The difference between pure and consequential economic lose is that the pure economic loses are the financial or monetary loses that do not flow from plaintiff due to injury or suffering from property damage, while consequential economic lose are the monetary or financial losses that flow from the plaintiff having suffered property damage or having been injured. Negligent conduct and negligent misstatement are two different scenarios. A negligent misstatement that causes pure economic lose involves, when a defendant has provided an incorrect information, when the misstatement was as a result of negligence and when the plaintiff replied on the misstatement to their detriment. Pure economic loss caused by negligent act however occurs when the defendant has engaged in a negligence conduct and the conduct caused the plaintiff to suffer pure economic lose. Remedies in tort There are various goals of compensatory damages. Compensatory damages are the damages that are intended to compensate plaintiff for any kind of damages they have suffered resulting from the tort committed by the defendant. The main goal of compensatory damages is compensate the personal injury and property damages. Compensatory damages aim at giving back or compensating for the things the victims had by awarding them with the reasonable amount that is necessary to restore the property in the right position that it was before the defendants destroyed it. In addition, in the loss of amenity, compensation damages aim at compensating the denial of the ability of plaintiff to participate in everyday activities and enjoy life as whole. Liabilities of the third party Vicarious liability mainly arises in regard to specific relationships between the defendant and another in the part of defendant to the other party. The relationships include that relationship between an employer and an employee. An employer may become vicariously liable for the torts that were committed by the employees. Another form of relationship is between the principal and an agent. For instance, the principal may be vicariously liable for the agent’s tortuous acts. The relationship between the principal and the agent is therefore a contractual relationship whereby the agent is given authority to act on his behalf concerning certain matters at a given fee. It is normally easy to identify whether a defendant is an employer or an independent contractor at the time they commit the tort. However sometimes it can be difficult to identify whether the defendant is an employee or contractor. The main difference is that an employer can be vicariously viable for the employee’s negligent conduct while he cannot be vicariously viable for an independent contractor’s negligent conduct. The key difference is that employees have contract of service while the independent contractors have contracts for services. It is normally essential to know whether a tort was committed during the course of employment because it helps to discover that the negligent act is bad way of the act that the employee was employed to perform. It can also show that the negligent act is bad way of doing an act that is reasonably incidental to act they were meant to perform. The doctrine of vicarious liability mainly applies to the tort of negligence. For instance the vicarious liability of employers depends on the negligent conduct of the employees.                           Read More