Foundations of Tort - Essay Example

?Foundations of Tort Foundations of Tort Tort is a branch of private law, where a person suffers harm because of someoneelse’s wrongful acts. Torts may be classified according to the negligence of others or their lack of performing their duties, for instance if the councils do not maintain good roads which then cause accidents. There are also intentional torts where the person being accused harmed the other with the full knowledge of what harm they are causing, for instance defamation and finally there is strict liability tort which covers injuries people suffer from using products, for instance if a person is burnt with hot coffee from a company that did not provide this information, by writing, to the consumers (Butler 2000 162). Torts usually result in compensation of the accusers, rather than the accused facing a jail term or other punitive measures similar to those in criminal offences. Therefore torts are civil suits brought against other people. The plaintiff in a tort has to prove three things in order to be compensated. First, they have to prove that those standing accused have a moral and legal obligation to act in a particular way. Secondly, the plaintiff has to [prove that the accused did not fulfill their obligation. Finally, she or he has to prove that she or he suffered an actual loss because of the accused not fulfilling their duties. Only after these have been established does the plaintiff get punitive or compensatory damages. Torts usually arise from common law principles coupled with legal enactments. The tort rules on compensation in Australia, especially those arising from accidents have been seen as being outdated, therefore inefficient in the way in which they work. In addition, if the party being sued is a government or public entity, there are several possibilities that people could exploit loopholes to get huge and undeserving compensation for mistakes of their own doing. Parties such as local governments in cities and counties could be sued for negligence by their residents should the latter feel that they have suffered a loss, physical harm or otherwise because the local government did not play its part in some sector or service provision, hence the loss suffered. Australia does not have a general system of compensation for victims, except in some very specific cases, for instance in traffic accidents. Thus, there is no cap on the amount of money that should be paid out to victims, leading to huge losses in cases of other forms of ‘negligence’ by the authorities. However, due to the increase in law suits against authorities in Australia, there was a necessity to start reforming laws on lawsuits against authorities. This led to the Injury Prevention, Rehabilitation & Compensation Act 2001. However, the laws under this act are still taking a while to be implemented (Muirhead & Hocking 2001, p. 111). The primary focus of the Australian tort law reform focuses more on insurance premiums as opposed to the how deep taxpayers have to dig in their pockets to pay for the numerous lawsuits filed against the authorities. It is becoming a source of concern for many citizens as to the source of money used to compensate victims who think they have been wronged by the negligence of the authorities. A higher dependency on insurance premiums rather than public coffers has seen insurance premiums skyrocket to unbelievable rates. This dependence has been brought about by the authorities using money in the public coffers as a last resort measure to compensate victims of the authorities’ negligence, leaving a bulk of the money going to compensate on the shoulders of insurers. Application of such overreliance on insurers in other sectors where the government was the underwriter, for instance in the provision of medical and health care, has led to the insolvency of some big insurance companies and the withdrawal of others, because of the unprofitability of such undertakings. The result is that, at the end of the day, it is the taxpayers of a country who end up paying for compensation to victims of lawsuits against the authorities, yet it is the mandate of these authorities to do their jobs. Many authorities are now focusing on implementing laws that reduce the number of compensations they pay out, the amounts they pay out, as well as putting more emphasis o preventing the law suits in the first place by doing their jobs satisfactorily. In the long run, this will be cheaper for both the authorities and the taxpayers in general. In order to understand the application of the tort law and how the outcomes can affect future lawsuits against others, it is important to understand the different aspects of tort, how they are interpreted, the theory and practical parts of it. First, there has to be a distinction between strict and fault liability. In strict liability, everyone who creates a mess or harms someone else is supposed to take full responsibility and try to clear the mess she or he has created, especially if the harm was done to the other’s property. Fault liability basically insists that people put into consideration others’ interests before indulging in activities that might put the others’ interests in jeopardy or harm. Under fault liability, one cannot demand that others not hurt them or destroy their property, since it is not naturally possible to do that as human is to error and human beings are generally social beings. Another important aspect to look at is the theoretical perspectives on tort law. One category that tort laws are divided into is analytical and normative theories. Analytical theories in tort attempt to interpret and explain what tort law is by identifying the key concepts in tort laws as well as finding the relationships among the different aspects of the tort laws. Normative theories attempt to bring reforms and to make a justification of the various tort laws in practice. Another category that tort laws can be divided into is instrumental and non-instrumental theories. Instrumental theories are those that believe that the main purpose of tort laws is to fix some social inequalities in life. However, many theorists cannot seem to agree whether tort laws’ additional purpose is to allocate costs efficiently or to allocate them fairly (Koziol et al. 2004, p. 25-35).On the other hand, non-instrumental theory views tort laws as being more about morals and politics than tort laws being about social inequities and correction. Tort laws usually result in the financial compensation of the victims, therefore economic interpretations of the various theories have been presented in an attempt to calculate and justify the amounts of compensation the injurers should pay out to the injured. However, these economic translations have been accused as having several shortcomings, especially since the law can hardly be interpreted in economic terms (Geistfeld 2001, p. 11). Some of these shortcomings include that he economic analysis lacks substance and that it does not provide proper structure for the application of tort laws. Tort laws are viewed more as being a form of corrective justice rather than retributive justice, which applies more to criminal cases. Corrective justice encompasses two aspects; first that people have a duty to not cause others injury and secondly are duties of repair where the injurer has a duty to make right the harm that his actions have caused to the victim (Goldberg 1997, p. 2034-2063). Another theory that attempts to explain tort laws is the civil recourse theory which hypothesizes that a person who has been harmed has the right to seek legal compensation against the person who has caused the harm. Furthermore, this theory seeks to emphasize that in tort laws, victims are given a power, rather than it being a duty, to take the perpetrators to court. The victim can choose to not take the injurer to court and settle for an out of court compensation. This is different from criminal offences where the state is the plaintiff and where there is a duty to prosecute on behalf of the victim, since the state has also being wronged by the perpetrator of a criminal offence. With the above analysis of the tort laws, it will now be easier to analyze cases involving tort laws, in a bid to justify compensation or not, in the context of Australian laws. The case of Annetts v Australian Stations Pty Ltd (2003) is one of the cases that brought into international limelight the Nervous shock Law and compensation under such cases. The compensation to victims who have suffered nervous shock after receiving traumatizing news of fatal accidents or deaths of people they love, for instance children, parents, husbands or wives, has caused large debates and different opinions on the issue. One of the main aspects in the debate is whether such cases should be analyzed in terms of science or in terms of law. When analyzed this way, the law in Australia managed to put an exclusion to psychiatric damages suffered by parents upon receiving news of an ill fate befalling their loved ones, in this case their children. In Annetts v Australian Stations Pty Ltd (2003), the story as per the plaintiff and reports went thus; in 1986, James Annetts, a 16 year old boy, went to work as a farm hand at a cattle station in Western Australia, an area known for its remoteness and extremely harsh weather conditions. Out of concern, James’ mother sought reassurance from the farm’s owner that James would not work unsupervised since he was neither experienced in cattle-handling nor in working in those conditions, an assurance the manager gave her. At about the same time, another young man aged 17 was employed by the same farm. His name was Simon Amos. In spite of the reassurances that James’ mother got from the owner of the farm, the two largely inexperienced boys were sent off to work in very remote and isolated parts of the harsh weather areas a few weeks after their arrival. A few weeks into the jobs and the boys got tired of their harsh working conditions and isolation and decided to run away. They drove into the desert in a bid to escape. It was only after a few days later that the manager in the station they were working in realized that the two boys were missing and informed the police. The police informed the parents of James Annetts and launched a search for the boys. On hearing the news of his son’s disappearance, James’ father collapsed. After several weeks of searching, the police found James’ blood stained hat, later on his vehicle, and finally found the remains of the two boys, one of which James’ father identified as his son’s. The parents of James suffered psychiatric illnesses upon the news of their son’s death. James and Amos had died of dehydration, hypothermia and exhaustion in December of 1986, the year they had tried to escape the harshness of their jobs. James’ parents decided to sue the farm for negligence that led to their son’s death, citing the psychiatric injuries they had suffered as a result of their son’s death due to this negligence. Prior to this case in Australia, any plaintiff taking an injurer to court had to prove a number of things. This included proving that what they actually suffered from was a psychiatric illness, that they were prone to get sudden or nervous shock and that the shock was directly caused by the accident or incident that befell their loved one. The laws on nervous shock in Australia at the time of the Annetts’ case did not favor the plaintiffs, James’ parents. One argument that the court put forward is that for nervous shock to occur, there had to be reasonable proximity between the persons having nervous shock and the area in which the victims met their misfortune; the plaintiffs had to be there physically at the scene in order for nervous shock to affect them (Miller 1968, p. 94). However, the place where James and his colleague died was several miles away from the parents’ residence and the parents only got to identify their son and the evidence through photographs shown to them by the police. The parents wanted to be compensated through the tort of duty of care by the managers of the farm because of the negligence shown by them towards their son, which led to his disappearance and ultimate death. Failing to get the judgment they were seeking, the Annetts’ took their case to the high court. In later cases, the rule that the victims suffering nervous shock as a result of harm done to their loved ones be within reasonable proximity of the scene of accident or incident for there to be claims, was reversed in the Law Reform act of 1944, after it was decided that the proximity did not matter, and it did not reduce the effects of nervous shock or post-traumatic disorder that family members suffered as a result of not being at the scene of the accident. In Tame v New South Wales, Tame took a police officer in court citing that she had suffered a psychiatric condition after learning that the said officer had made a report that she was driving under the influence of alcohol three times the allowed level, an accusation the plaintiff found to be very humiliating. The District Court found the plaintiff rightful in her claims and awarded her damages. However, this ruling was overturned in the New South Wales Court of Appeal, which claimed that the plaintiff’s claim did not warrant the amount she was awarded, and that furthermore, the police officer could not have foreseen the damages suffered by the complainant. Therefore, Tame lost her case in an appeal presented to the courts of appeal in New South Wales. However, the supreme court offered a different judgment than the lower courts in the Annetts v Australian Stations Pty Ltd. Citing that proximity of the parents to the scene was not very material, the judge noted that the parents had been concerned about their son’s safety, an issue they had vehemently raised and assured by the farm’s managers (Deitrich, 2003 11). This alone showed that there was a foreseeable danger that is why the parents raise their concern of their son’s safety. The mangers, however, did not adhere to their assurances and their negligence by sending the inexperienced farm hands to remote, isolated and harsh areas resulted in the farmhands’ deaths. The supreme court of appeal found that the farm owners had a duty of care to the boys and they did not fulfill their duties. This caused distress to the parents on learning of their son’s disappearance and subsequent death, hence their psychiatric disorder. The court awarded the Annetts’ damages in lieu of this information. The above two cases demonstrate how tort laws can be applied in different cases. In the instance where it was proven that a person had done considerable wrong to another, and more so after being forewarned the perpetrator had a case to answer. However, in other cases, the tort laws do not apply because the perceived damages might not be necessarily harmful to the purported victim, hence compensation is not applicable. References Butler, D, 2000. Media Negligence in the Information Age: A New Frontier for a New Century. 8 Torts Law Journal 159, 162. Deitrich, J., 2003. Nervous Shock: Tame v New South Wales and Annetts v Australian Stations Pty Ltd. 11 Torts Law Journal 11. Geistfeld, M, 2001. Economics, Moral Philosophy, and the Positive Analysis of Tort Law,” in Gerald Postema (ed.). Philosophy and the Law of Torts, New York: Cambridge University Press. Goldberg, J., 1997. Misconduct, Misfortune, and Just Compensation: Weinstein on Torts. Columbia Law Review 97, 2034–63. Koziol et al., 2004. European tort law 2003. New York: Springer. Miller, C. J, 1968. Mental Shock and the Aftermath of a Train Disaster. 31 Modern Law Review 92, 94. Muirhead, S, & Hocking, B, 2001. A Uniquely Australian Tragedy? (The Law of Nervous Shock Limps On). 6 Tolley’s Communications Law 111. Read More