Tort
A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
While tort law in civil law jurisdictions largely derives from Roman law, common law jurisdictions derive their tort law from customary English tort law. In civil law jurisdictions based on civil codes, both contractual and tortious or delictual liability is typically outlined in a civil code based on Roman Law principles. Tort law is referred to as the law of delict in Scots and Roman Dutch law, and resembles tort law in common law jurisdictions in that rules regarding civil liability are established primarily by precedent and theory rather than an exhaustive code. However, like other civil law jurisdictions, the underlying principles are drawn from Roman law. A handful of jurisdictions have codified a mixture of common and civil law jurisprudence either due to their colonial past or due to influence from multiple legal traditions when their civil codes were drafted. Furthermore, Israel essentially codifies common law provisions on tort.
Overview
In common, civil, and mixed law jurisdictions alike, the main remedy available to plaintiffs under tort law is compensation in damages, or money. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction, such as in the English case of Miller v Jackson. Usually injunctions will not impose positive obligations on tortfeasors, but some jurisdictions, such as those in Australia, can make an order for specific performance to ensure that the defendant carries out certain legal obligations, especially in relation to nuisance matters. At the same time, each legal system provides for a variety of defences for defendants in tort claims which, partially or fully, shield defendants from liability. In a limited range of cases varying between jurisdictions, tort law will tolerate self-help as an appropriate remedy for certain torts. One example of this is the toleration of the use of reasonable force to expel a trespasser, which is typically also a defence against the tort of battery.In some, but not all, civil and mixed law jurisdictions, the term delict is used to refer to this category of civil wrong, though it can also refer to criminal offences. Other jurisdictions may use terms such as extracontractual responsibility or civil responsibility. In comparative law, the term tort is generally used. The word 'tort' was first used in a legal context in the 1580s, although different words were used for similar concepts prior to this time. A person who commits a tortious act is called a tortfeasor. Although crimes may be torts, the cause of legal action in civil torts is not necessarily the result of criminal action. A victim of harm, commonly called the injured party or plaintiff, can recover their losses as damages in a lawsuit. To prevail, the plaintiff in the lawsuit must generally show that the tortfeasor's actions or lack of action was the proximate cause of the harm, though the specific requirements vary between jurisdictions.
Common law
History
Torts and crimes in common law originate in the Germanic system of compensatory fines for wrongs, with no clear distinction between crimes and other wrongs. In Anglo-Saxon law, most wrongs required payment in money paid to the wronged person or their clan. Fines in the form of wīte were paid to the king or holder of a court for disturbances of public order, while the fine of weregild was imposed on those who committed murder with the intention of preventing blood feuds. Some wrongs in later law codes were botleas 'without remedy', that is, unable to be compensated, and those convicted of a botleas crime were at the king's mercy. Items or creatures which caused death were also destroyed as deodands. Alfred the Great's Doom Book distinguished unintentional injuries from intentional ones, and defined culpability based on status, age, and gender. After the Norman Conquest, fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown. The petty assizes were established in 1166 as a remedy for interference with possession of freehold land. The trespass action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. It arose in local courts for slander, breach of contract, or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made de cursu ; however, it was restricted to interference with land and forcible breaches of the king's peace. It may have arisen either out of the "appeal of felony", or assize of novel disseisin, or replevin. Later, after the Statute of Westminster 1285, in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force. As its scope increased, it became simply "action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case.In 1401, the English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle. Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for common carrier, which arose around 1400, was also emphasised in the medieval period. Unintentional injuries were relatively infrequent in the medieval period. As transportation improved and carriages became popular in the 18th and 19th centuries, however, collisions and carelessness became more prominent in court records. In general, scholars of England such as William Blackstone took a hostile view to litigation, and rules against champerty and maintenance and vexatious litigation existed. The right of victims to receive redress was regarded by later English scholars as one of the rights of Englishmen. Blackstone's Commentaries on the Laws of England, which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word tort in a few places.
In contemporary common law jurisdictions, successful claimants in both tort and contract law must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty. Legal injuries addressable under tort law in common law jurisdictions are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise such varied topics as automobile accidents, false imprisonment, defamation, product liability, copyright infringement, and environmental pollution. Modern torts are heavily affected by insurance and insurance law, as many cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with the insurance policy setting a ceiling on the possible payment.
Liability
While individuals and corporations are typically only liable for their own actions, indirect liability for the tortious acts of others may arise by operation of law, notably through joint and several liability doctrines as well as forms of secondary liability. Liability may arise through enterprise liability or, in product liability cases in the United States, market share liability. In certain cases, a person might hold vicarious liability for their employee or child under the law of agency through the doctrine of respondeat superior. For example, if a shop employee spilled cleaning liquid on the supermarket floor and a victim fell and suffered injuries, the plaintiff might be able to sue either the employee or the employer. There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation.Absolute liability, under the rule in M. C. Mehta v. Union of India, in Indian tort law is a unique outgrowth of the doctrine of strict liability for ultrahazardous activities. Under the precedent established in the English case of Rylands v Fletcher, upon which the Indian doctrine of absolute liability is based, anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own purposes anything likely to cause mischief if it escapes is answerable for all direct damage thereby caused. While, in England and many other common law jurisdictions, this precedent is used to impose strict liability on certain areas of nuisance law and is strictly "a remedy for damage to land or interests in land" under which "damages for personal injuries are not recoverable", Indian courts have developed this rule into a distinct principle of absolute liability, where an enterprise is absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from the operation of hazardous activity. This differs greatly from the English approach as it includes all kinds of resulting liability, rather than being limited to damage to land.
In New Zealand, the tort system for the majority of personal injuries was scrapped with the establishment of the Accident Compensation Corporation, a universal system of no-fault insurance. The rationale underlying New Zealand's elimination of personal injury torts was securing equality of treatment for victims regardless of whether or the extent to which they or any other party was at fault. This was the basis for much of Professor Patrick Atiyah's scholarship as articulated in Accidents, Compensation and the Law. Originally his proposal was the gradual abolition of tort actions, and its replacement with schemes like those for industrial injuries to cover for all illness, disability and disease, whether caused by people or nature. In addition to the development of the Accident Compensation Corporation to eliminate personal injury lawsuits, the tort system for medical malpractice was scrapped in New Zealand, both following recommendations from the Royal Commission in 1967 for 'no fault' compensation scheme.
In the case of the United States, a survey of trial lawyers identified several modern innovations that developed after the divergence of English and American tort law, including strict liability for products based on Greenman v. Yuba Power Products, the limitation of various immunities, comparative negligence, broader rules for admitting evidence, increased damages for emotional distress, and toxic torts and class action lawsuits. However, there has also been a reaction in terms of tort reform, which in some cases have been struck down as violating state constitutions, and federal preemption of state laws.