The Issues of Tortious Liability - Assignment Example

?Tort Liability Introduction The word tort is of French origin and is equivalent of the English word wrong, and the Roman law term delict. It is derived from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. It is commonly used to mean a breach of duty amounting to a civil wrong. Laws that remedy individuals hurt by unreasonable action of others are called tort laws. They're civilized grievances recognized by the agency of enactment in the manner that precipitate by reason of a suit in law. These unfairness outcomes in a wrong or detriment, form the foundation of a wrong toed alliance. A tortuous liability is related to the duty of care and negligence of that duty, with respect to persons with whom there is no contractual liability. For example if a property owner fails to maintain proper safety standards on his property and a passerby is injured by something falling from the roof, the property owner is liable for the damages to that person even though there are no contractual obligations between them. A person who commits a tort is known as a tortfeaser, or wrong doer. Where there are more than one, they are called joint tortfeasers. Their wrong doing is called a tortuous act and they are liable to be sued jointly and severally. The person who suffers the injury or damage is called the injured or aggrieved. The tort law’s primary objective is to offer assistance for damages incurred. Its aim is compensation of victims or their defendants. Capacity, loss of earnings and pain are the damage types. Objectives of Law of Torts To determine rights between parties to a dispute. To prevent the continuation or repetition of harm To protect certain rights recognized by law To restore property to its rightful owner where property is wrongfully taken away. Torts are categorized into three major classes: 1. Intentional torts. An example is intentionally beating up someone 2. Negligent torts. An example would be disobeying traffic laws and causing an accident 3. Strict Liability torts. An example would be defective product’s selling and making. The law of tort is used as an instrument for making people adhere to standards of reasonable behavior and respect the rights and interests of one another. A protected interest gives right to a legal right, which in turn gives rise to a corresponding legal duty. An act, which infringes a legal right, is a wrongful act but not every wrongful act is a tort. To constitute a tort or civil injury the following must have taken place:- There must be a wrongful act or omission The wrongful act or omission must give rise to legal damage or actual damage 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. The discussion is on two scenarios, PC Nosey Parker and Romulus PLC. It will centre around tortuous liability specifically negligence tort. Negligence is the failure to use ordinary care through either action or omission. It occurs when somebody does not exercise the amount of care that a reasonably careful person would use under the circumstances. It also occurs when somebody does something that a reasonably careful person would not do under the circumstances. PC – Nosey Parker Tort Liability Case Background: PC Nosey Parker inherited ? 2.9m from his Arsenal supporting grandmother. He is a worker for Essex based in Billericasy. On April 1 he witnessed A & B robbing an old lady. The following happened. He manages to arrest A and handcuffs him to a weak pole attached to the door of the shop. He goes after B and returns to take A to the Police Station, in the process he carelessly pulls off the weak pole which falls and injures the foot of a passerby Alf a premier Division football player. As a result of the injury Alf is able to play for his club for 2 months. Alf’s club can only sell him for ?1m instead of ?2m before his injury Alf’s club loses ?20,000 in ticket sales during the 2 months absence of Alf. Thelma, Alf’s sister suffers a nervous shock as she expects him to pay for her hairdressing course shortly. Question is does this scenario constitute a tort case? This scenario deals with a negligence tort. Negligence is seen on the part of the local authority that is legally required to ensure safety of pedestrians as they walk the streets. The pole was weak and due to this it fell on Alf. It can also be negligence on the part of PC Nosey Parker for carelessly pulling the handcuffs from the pole and due to it being weak the pole fell and injured Alf’s foot. The injured party is Alf and the tortfeaser or wrong doer is the local council and possibly PC Nosey Parker. For an act to constitute a tort: One, there must be a wrongful act or omission. The wrongful act is seen on the part of the local authority as it has the duty to ensure safety of the pedestrians and the negligence of the duty to maintain string poles on the sidewalk that caused Alf to be injured. The injury was also caused by the carelessness of PC Nosey Parkey in pulling off the handcuffs off the pole. Is it the duty of PC Nosey Parker to maintain safety standards for pedestrians? If the local authority had maintained the safety of the pedestrians by ensuring the poles were safe, PC Nosey Parker’s action of pulling the handcuffs would not have resulted in the pole falling on Alf. The act complained of should under the circumstances be legally wrong as regards the party complaining. Two, the wrongful act or omission must give rise to legal damage or actual damage. Damage is the sum of money awarded by court to compensate damage. Damage means the loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of another. Alf and his club suffered because of his injury in the following way and had the right to sue for damages. Alf’s club can only sell him for ?1m instead of ?2m before the injury Alf’s club looses ?20,000 in ticket sales during the 2 months absence Alf’s sister Thelma suffers a nervous shock as she expects him to pay for her hairdressing course which Alf will not be able to do with his injury. This incident caused her emotional distress. Three, 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. The essential remedy for a tort is action for damages. This scenario shows that Alf has a tort case given the above circumstances. The tort laws will offer a remedy to Alf being injured by the action of the local authority and PC – Nosey Parker. There is also the issue vicarious liability. This occurs when one person is held responsible for the negligence of another. In this case PC Nosey-Parker may be held responsible for the injury on Alf due to the negligence of the local authority for the safety of pedestrians on the sidewalks. The tortuous liability is related to the duty of care and negligence of that duty by the local authority to Alf with whom they had no contractual liability. Alf and his club have lost earning, endured pain and suffering, incurred medical expenses and Thelma the sister has had emotional distress. Romulus PLC Case Background Shareholders of Romulus Plc have lost heavily after buying more shares in the company in reliance on an audit report about the company negligently made by Careful and Partners The company has been trading a profit instead of a loss in the past 6 months This is a tort case of negligence. The audit firm Careful & Partners negligently made an audit report about Romulus Plc which the shareholders relied on to buy more shareholders to buy more shares. The injured parties are the shareholders of Romulus Plc and the tortfeasers or wrongdoers are the audit firm Careful & Partners. However for it to be a tortious liability the following must hold. One, there must be a wrongful act or omission. The act complained of should under the circumstances be legally wrongful as regards the party complaining, i.e. it must be prejudicially affect him in some legal right. This must be an act or omission. The act which prima facie appears to be innocent may become tortuous if it invades the legal right of another. In this scenario the shareholders bought more shares based on an audit report negligently made by Careful & Partners and lost heavily. This is a wrongful act on the part of the auditors. Two, the wrongful act or omission must give rise to legal damage or actual damage. The buying of more shares by the shareholders based on the audit report led to them losing heavily. Legal damage is not the same as actual damage. Every infringement of the plaintiff’s private right in this case the shareholders or unauthorized interference with his property give rise to legal damage. Every absolute right, injury, or wrong i.e. tortuous is complete the moment the right is violated irrespective of whether it is accompanied by an actual damage. Three, the wrongful act must be of such nature as to give rise to a legal remedy in the form of an action for damages. The shareholders need to be compensated for the heavy losses they made after purchasing more shares based on the audit report. The tort laws will offer a remedy to the shareholders of Romulus who were harmed by the action of the audit firm that negligently made an audit report that made them purchase more shares. The tortuous liability is related to the duty of care and negligence of that duty by the auditors to provide authentic audit reports. The shareholders and the auditors had no contractual liability. The shareholders suffered heavy losses due to the purchase of more shares. Conclusion Both cases have tortous liability specifically negligence tort. Negligence is often claimed in personal injury lawsuit. There was personal injury in Alf’s situation. In the first case Alf can sue for damages due to the injury caused by the weak pole and the carelessness of PC Nosey-Parker. He needs to be compensated for the loss in earnings for the club and the sister’s emotional distress. On the second case, the shareholders need to be compensated for the losses they incurred due to the negligence of the auditors in making the audit report. The plaintiffs in both cases must prove that their case constitute a tort. There must be a wrongful act or omission, the wrongful act or omission must give rise to legal damage or actual damage and the wrongful act must be of a nature as to give rise to a legal remedy in the form of an action for damages. The burden of proving negligence will lie with the plaintiff; Alf and the shareholders. They must prove that the defendants owed them a duty of care, that the defendant has breached that duty and that they have suffered damage. In negligent tort cases there has to be proximate cause. This has to exist where the plaintiff is injured as the result of negligent conduct and the plaintiff’s injury must have been a natural and probable result of the negligent conduct.1 1Ariel Porat and Alex Stein, Tort Liability under Uncertainty (Oxford University Press 2001) 23 Bibliography P Ariel and S Alex, Tort Liability under Uncertainty (Oxford University Press 2001) Read More