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A tort, in
common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used among legal profe ...
jurisdiction, is a
civil wrong A civil wrong or wrong is a cause of action A cause of action or right of action, in law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whol ...
(other than
breach of contract Breach of contract is a legal Law is a system of rules created and law enforcement, enforced through social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of ...
) that causes a claimant to suffer loss or harm, resulting in
legal liability In law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its b ...
for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things. The word 'tort' stems from Old French via the
Norman Conquest The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England England is a Countries of the United Kingdom, country that is part of the United Kingdom. It shares land borders with Wales to its west and ...
and Latin via the
Roman Empire The Roman Empire ( la, Imperium Rōmānum ; grc-gre, Βασιλεία τῶν Ῥωμαίων, Basileía tôn Rhōmaíōn) was the post-Republican Republican can refer to: Political ideology * An advocate of a republic, a type of governme ...

Roman Empire
. Tort law involves claims in an
action ACTION is a bus operator in , Australia owned by the . History On 19 July 1926, the commenced operating public bus services between Eastlake (now ) in the south and in the north. The service was first known as Canberra City Omnibus Se ...
seeking to obtain a private
civil remedy A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of Civil law (common law), civil law jurisdiction, enforces a right, imposes a Sentence (law), penalty, or mak ...
, typically monetary
damages At common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used ...
. Tort claims may be compared to
criminal law Criminal law is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environ ...
, which deals with
criminal wrongs
criminal wrongs
that are punishable by the state. A wrongful act, such as an assault and battery, may 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 A contract is a legally binding agreement that defines and governs the rights and duties between or among its parties Image:'Hip, Hip, Hurrah! Artist Festival at Skagen', by Peder Severin Krøyer (1888) Demisted with DXO PhotoLab Clearview; ...
, which also provides civil remedies after breach of a duty that arises from a contract; but whereas the contractual
obligation An obligation is a course of action that someone is required to take, whether legal Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A s ...
is one agreed to by the parties, obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract. In both contract and tort, successful claimants must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty.


Terminology

The person who commits the 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; the harm in civil torts may be due to
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort A tort, in common law jurisdiction, is a civil wrong (other than br ...

negligence
, which does not amount to
criminal negligence In criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property Property (''latin: Res Privata'') in the Abstract and concrete, ab ...
. The victim of the harm can recover their loss as
damages At common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used ...
in a
lawsuit A lawsuit is a proceeding by a party or parties against another in the civil Civil may refer to: *Civic virtue, or civility *Civil action, or lawsuit *Civil affairs *Civil and political rights *Civil disobedience *Civil engineering *Civil ...
. To prevail, the
plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue Judgment (law), judgment ...
in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the legally recognizable cause of the harm. The equivalent of tort in civil law jurisdictions is "
delict Delict (from Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Rep ...
". Moreover, Tort law differs from Criminal law, whilst both contain punitive elements, Tort law is known to be more vindicatory and 'compensatory' by nature. 'The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another.' Legal injuries are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of
privacy Privacy (, ) is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively. When something is private to a person, it usually means that something is inherently special ...
, property, or constitutional rights. Torts comprise such varied topics as automobile accidents,
false imprisonment False imprisonment or unlawful imprisonment occurs when a person intentionally restricts another person’s movement within any area without legal authority, justification, or consent, the restrained person's permission. Actual physical restrain ...
,
defamation Defamation (also known as calumny, vilification, libel, slander, or traducement) is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort A tort, in commo ...
,
product liability Product liability is the area of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its envir ...
,
copyright infringement Copyright infringement (at times referred to as piracy) is the use of works Works may refer to: People * Caddy Works Pierce "Caddy" Works (January 2, 1896 – July 19, 1982) was an American basketball and baseball coach. He was the head ba ...
, and environmental pollution ( toxic torts). Compared to criminal cases, tort lawsuits have a lower burden of proof, namely " preponderance of evidence", rather than
beyond a reasonable doubt Beyond a reasonable doubt is a legal standard of proof Burden of proof is a legal duty that encompasses two connected but separate ideas that apply for establishing the truth of facts in a trial before tribunals in the United States: the "burde ...
. Sometimes a claimant may prevail in a tort case even if the defendant who allegedly caused harm were acquitted in an earlier criminal trial. For example, O. J. Simpson was acquitted in criminal court of murder but later found liable for the tort of
wrongful death Wrongful death is a claim against a person who can be held liable for a death. The claim is brought in a civil action A lawsuit is a proceeding by a party or parties against another in the civil court of law A court is any person or ...
. Both tort law and criminal law may impose liability where there is: * intentional action * reckless behaviour *
carelessness Carelessness refers to the lack of awareness during a behaviour that can result in unintentional Unintended consequence, consequences. The consequences way of carelessness are often undesirable and tend to be mistakes. A lack of concern or an in ...

carelessness
*
product liability Product liability is the area of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its envir ...
(without negligence) in the US and the EU * "innocence" (or blameless inadvertence) ''provided'' there is
strict liability In criminal law, criminal and Civil law (common law), civil law, strict liability is a standard of Public liability, liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of Tort, ...
*
Battery Battery may refer to: Energy source * Electric battery, an electrochemical device to provide electrical power ** Automotive battery, a device to provide power to certain functions of an automobile ** List of battery types * Energy storage, inclu ...
*
Assault An assault is the act of inflicting physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime In ordinary language, a crime is an u ...
*
Trespass Trespass is an area of criminal law Criminal law is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, ...
Both laws also deter certain types of undesirable behaviour through liability. However, in Criminal law the term 'guilty' is used whereas in Tort law this is not the case and 'liable' is used instead.


History

Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
contained provisions for torts in the form of
delict Delict (from Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Rep ...
, which later influenced the civil law jurisdictions in
Continental Europe Continental Europe or mainland Europe is the contiguous continent A continent is any of several large landmass A landmass, or land mass, is a large region In geography Geography (from Greek: , ''geographia'', lite ...

Continental Europe
, but a distinctive body of law arose in the
common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used among legal profe ...
word traced to
English tort law English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than English criminal law, criminal law ...
. 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.


Medieval period

Torts and crimes at common law originate in the
Germanic Germanic may refer to: * Germanic peoples, an ethno-linguistic group identified by their use of the Germanic languages ** List of ancient Germanic peoples and tribes * Germanic languages :* Proto-Germanic language, a reconstructed proto-language of ...
system of compensatory fines for wrongs ( OE ''unriht''), with no clear distinction between crimes and other wrongs. In
Anglo-Saxon law Anglo-Saxon law (Old English Old English (, ), or Anglo-Saxon, is the earliest recorded form of the English language English is a West Germanic languages, West Germanic language first spoken in History of Anglo-Saxon England, early medi ...
, most wrongs required payment in money or in kind (''bōt'', literally 'remedy') to the wronged person or their clan. ''Wīte'' (literally 'blame, fault') was paid to the king or holder of a court for disturbances of public order. ''
Weregild Weregild (also spelled wergild, wergeld (in archaic/historical usage of English), weregeld, etc.), also known as man price (blood money Blood money may refer to: * Blood money (restitution), money paid to the family of a murder victim Films ...
'', which was a murder fine based on a victim's worth, was intended to prevent blood
feud A feud , referred to in more extreme cases as a blood feud, vendetta, faida, clan war, gang war, or private war, is a long-running argument or fight, often between social groups of people, especially family, families or clans. Feuds begin because ...
s.Malone WS. (1970)
"Ruminations on the Role of Fault in the History of the Common Law of Torts"
''Louisiana Law Review''.
Some wrongs in later law codes were ''botleas'' 'without remedy' (e.g. theft, open murder, arson, treason against one's lord), 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
deodand A deodand is a thing forfeited or given to God, specifically, in law, an object or instrument that becomes forfeited because it has caused a person's death. The English common law of deodands traces back to the 11th century and was applied, on and ...
s. Assessing intention was a matter for the court, but
Alfred the Great Alfred the Great (848/49 – 26 October 899) was king of the West Saxons This is a list of monarchs of Wessex until 886 AD. For later monarchs, see the List of English monarchs. While the details of the later monarchs are confirmed by a numbe ...

Alfred the Great
's Doom Book did distinguish unintentional injuries from intentional ones, whereas culpability depended on status, age, and gender. After the
Norman Conquest The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England England is a Countries of the United Kingdom, country that is part of the United Kingdom. It shares land borders with Wales to its west and ...
, 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 (i.e. of novel disseisin, of mort d'ancestor, and of darrein presentment) were established in 1166 as a remedy for interference with possession of freehold land. The
trespass Trespass is an area of criminal law Criminal law is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, ...

trespass
action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. The plea arose in local courts for
slander Defamation (also known as calumny, vilification, libel, slander or traducement) is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime In ord ...
,
breach of contract Breach of contract is a legal Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environme ...
, 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'' (available by right, not fee); 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 Replevin () or claim and delivery (sometimes called revendication) is a legal remedy A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of Civil law (common law ...
. Later, after the
Statute of Westminster 1285 A statute is a formal written enactment of a legislature, legislative authority that governs the legal entities of a city, State (polity), state, or country by way of consent. Typically, statutes command or prohibit something, or declare Public po ...
, 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 A common carrier in common law countries (corresponding to a public carrier in some civil law (legal system), civil law systems,Encyclopædia Britannica CD 2000 "Civil-law public carrier" from "carriage of goods" usually called simply a ''carrier'' ...
, which arose around 1400, was also emphasized 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 Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholarnot necessaril ...

William Blackstone
took a hostile view to litigation, and rules against champerty and maintenance and
vexatious litigation Vexatious litigation is legal action which is brought solely to harass or subdue an adversary An adversary is generally considered to be a person, group, or force that opposes and/or strike (attack), attacks. Adversary may also refer to: * Satan ...
existed. The restriction on assignment of a cause of action is a related rule based on
public policy Public policy is an institutionalized proposal to solve relevant and real-world problems, guided by a conception and implemented by programs as a course of action created and/or enacted, typically by a government A government is th ...
.


English influence

The right of victims to receive
redress Redress is a setting right, as of injury, oppression, or wrong. Redress may refer to: * Redress of grievances or right to petition ** Right to petition in the United States, Redress of grievances in the United States * Legal redress * Redress (char ...
was regarded by later English scholars as one of the
rights of Englishmen The "rights of Englishmen" are the traditional rights of English subjects and later English speaking subjects of the British crown. In the 18th century, some of the colonists who objected to British rule in the thirteen British North American c ...
.Goldberg JCP. (2005)
The constitutional status of tort law: Due process and the right to a law for the redress of wrongs
''Yale Law Journal''.
Blackstone's ''
Commentaries on the Laws of England The ''Commentaries on the Laws of England'' are an influential 18th-century treatise on the common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions writ ...
'', 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.


United States influence

United States tort lawThis article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil code A civil code is a codification of private law relating to property l ...
was influenced by English law and Blackstone's ''Commentaries'', with several state constitutions specifically providing for redress for torts in addition to
reception statuteA reception statute is a statutory law adopted as a former British colony becomes independent by which the new nation adopts, or receives, the English common law before its independence to the extent not explicitly rejected by the legislative body ...
s which adopted English law. However, tort law was viewed as relatively undeveloped by the mid-19th century; the first American treatise on torts was published in the 1860s but the subject became particularly established when
Oliver Wendell Holmes, Jr Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholarnot necessaril ...
wrote on the subject in the 1880s. Holmes' writings have been described as the "first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain",Goldberg JCP, Zipursky BC. (2010)
Torts as Wrongs
''Texas Law Review''.
although Holmes' summary of the history of torts has been critically reviewed. The 1928 US case of Palsgraf v. Long Island Railroad Co. heavily influenced the British judges in the 1932
House of Lords The House of Lords, formally The Right Honourable the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled, is the of the . Membership is by , or . Like the , it meets in the . ar ...
case of
Donoghue v Stevenson was a landmark court decision in Scots delict lawDelicts in Scots Law are Civil wrong, civil wrongs which are actionable in Scottish courts. The equivalent term in English law and other common law jurisdictions is known as tort law. The most di ...
.


Modern development

The law of torts for various jurisdictions has developed independently. In the case of the United States, a survey of trial lawyers pointed to several modern developments, including strict liability for products based on ''Greenman v. Yuba Power Products'', the limitation of various immunities (e.g.
sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine A legal doctrine is a framework, set of rules, Procedural law, procedural steps, or Test (law), test, often established through precedent in the common law, through which judgments ca ...
, charitable immunity),
comparative negligence Comparative negligence, called non-absolute contributory negligence outside the United States The United States of America (USA), commonly known as the United States (U.S. or US), or America, is a country Contiguous United States, primaril ...
, broader rules for admitting evidence, increased damages for
emotional distress In medicine, distress is an aversive state in which a person A person (plural people or persons) is a being that has certain capacities or attributes such as reason, morality, consciousness or self-consciousness, and being a part of a cultural ...
, and
toxic tort A toxic tort A tort, in common law jurisdiction, 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. It can include inte ...
s and
class action A class action, also known as a class-action lawsuit, class suit, or representative action, is a type of lawsuit A lawsuit is a proceeding by a party or parties against another in the civil Civil may refer to: *Civic virtue, or civility ...
lawsuits. However, there has also been a reaction in terms of
tort reform Tort reform refers to proposed changes in the civil justice system that aim to reduce the ability of victims to bring tort A tort, in common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body ...
, which in some cases have been struck down as violating state constitutions, and federal preemption of state laws.American Association for Justice (1996)
Top 10 in torts: evolution in the common law.
Modern torts are heavily affected by insurance and
insurance lawInsurance law is the practice of law surrounding insurance Insurance is a means of protection from financial loss. It is a form of risk management Risk management is the identification, evaluation, and prioritization of risk In simple te ...
, as most cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with the
insurance policy In insurance Insurance is a means of protection from financial loss. It is a form of risk management Risk management is the identification, evaluation, and prioritization of risk In simple terms, risk is the possibility of something ...
, a
deep pocket Deep pocket is an American slang term; it usually means "extensive financial wealth or resources". It is usually used in reference to big companies or organizations (ex: the American tobacco companies have "deep pockets"), although it can be used ...
limit, setting a ceiling on the possible payment.


Comparative law

In the international comparison of modern tort law, common law jurisdictions based upon
English tort law English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than English criminal law, criminal law ...
have foundational differences from civil law jurisdiction, which may be based on the Roman concept of
delict Delict (from Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Rep ...
. Even among common law countries, however, significant differences exist. For example, in England legal fees of the winner are paid by the loser (the English rule versus the American rule of attorney fees). Common law systems include
United States tort lawThis article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil code A civil code is a codification of private law relating to property l ...
, Australian tort law,
Canadian tort law Tort law in Canada concerns the treatment of the law of tort A tort, in common law jurisdiction, 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 ...
, Irish tort law, and Scots Law of Delict. The Jewish law of rabbinic damages is another example although tort in
Israeli law Israeli law is based mostly on a common law legal system, though it also reflects the diverse History of the State of Israel, history of the territory of the State of Israel throughout the last hundred years (which was at various times prior to ...
is technically similar to English law as it was enacted by British Mandate of Palestine authorities in 1944 and took effect in 1947. There is more apparent split between the
Commonwealth A commonwealth is a traditional English term for a political community founded for the common good In philosophy Philosophy (from , ) is the study of general and fundamental questions, such as those about reason, Metaphysics, existenc ...

Commonwealth
countries (principally England, Canada and Australia) and the United States.Cane P. (2012)
Searching for United States Tort Law in the Antipode
''Pepperdine Law Review''.
The United States has been perceived as particularly prone to filing tort lawsuits even relative to other common law countries, although this perception has been criticized and debated. Atiyah PS. (1987)
Tort Law and the Alternatives: Some Anglo-American Comparisons
''Duke Law Journal''.
As of 1987, class actions were relatively uncommon outside of the United States. As of 1987, English law was less generous to the plaintiff in the following ways:
contingent fee A contingent fee (also known as a contingency fee in the United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in N ...
arrangements were restricted, English judges tried more decisions and set
damages At common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used ...
rather than juries, wrongful death lawsuits were relatively restricted, punitive damages were relatively unavailable, the collateral source rule was restricted, and strict liability, such as for product liability, was relatively unavailable. England's welfare state, such as free healthcare through
National Health Service The National Health Service (NHS) is the umbrella term for the publicly funded healthcare systems of the United Kingdom (UK). Since 1948, they have been funded out of general taxation. There are three systems which are referred to using the " ...
, may limit lawsuits. On the other hand, as of 1987 England had no workers compensation system and lawsuits due to workplace injuries were relatively common and facilitated by trade unions, whereas in the United States the system of workers' compensation insurance provides for compensation an employee who is injured at work even if the employee was at fault for the injury, but otherwise prohibits most lawsuits against the employer (although lawsuits against third parties who are responsible for the injury, such as the manufacturer of a defective ladder on which the employee was injured) are permitted. The United States also has faced a rise in
no-fault insurance In its broadest sense, no-fault insurance is any type of insurance Insurance is a means of protection from financial loss. It is a form of risk management Risk management is the identification, evaluation, and prioritization of risk I ...
for automobile liability in several states. In England,
ombudsmen An ombudsman (, also , ), ombudsperson, ombud, ombuds, or public advocate is an official who is charged with representing the interests of the public In public relations and communication science, publics are groups of individual people, ...

ombudsmen
may also take cases which could alternatively become tort lawsuits. When comparing Australia and the United States, Australia's tort law is similarly
state law State law refers to the law of a federated state A federated state (which may also be referred to as a state, a province A province is almost always an administrative division Administrative division, administrative unitArticle 3(1). ...
; however, there is a federal common law for torts unlike the United States. The influence of United States law on Australia has been limited. However, United States law may have influenced Australia's development of strict liability claims for products indirectly through legislation affected by
European Union The European Union (EU) is a political and economic union of member states that are located primarily in Europe Europe is a which is also recognised as part of , located entirely in the and mostly in the . It comprises the wester ...

European Union
, and in the 1990s class actions were introduced in Australia. Australia has
universal healthcare Universal healthcare (also called universal health coverage, universal coverage, or universal care) is a health care system in which all residents of a particular country or region are assured access to health care. It is generally organized aroun ...
and 'welfare state' systems which relieve injured persons (and others) from having to pay their medical expenses and also limit lawsuits. In New Zealand, a no-fault accident compensation system has limited the development of personal injury tort law.


Conflict of laws

In certain instances, different jurisdictions' law may apply to a tort, in which case rules have developed for which law to apply. This occurs particularly in the United States, where each of the 50 states may have different
state law State law refers to the law of a federated state A federated state (which may also be referred to as a state, a province A province is almost always an administrative division Administrative division, administrative unitArticle 3(1). ...
s, but also may occur in other countries with a federal system of states, or internationally.


Categories

Torts may be categorized in several ways, with a particularly common division between negligent and intentional torts. Quasi-torts are unusual tort actions. Particularly in the United States, "collateral tort" is used to refer to torts in labour law such as intentional infliction of emotional distress ("outrage"); or wrongful dismissal; these evolving cause of action, causes of action are debated and overlap with
contract law A contract is a legally binding agreement that defines and governs the rights and duties between or among its parties Image:'Hip, Hip, Hurrah! Artist Festival at Skagen', by Peder Severin Krøyer (1888) Demisted with DXO PhotoLab Clearview; ...
or other legal areas to some degree.Gergen M. (1995)
Grudging Defense of the Role of the Collateral Torts in Wrongful Termination Litigation Employment
''Texas Law Review''.
The most common action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests or noneconomic interests such as the tort of negligent infliction of emotional distress in the United States. Negligence actions include claims coming primarily from car accidents and personal injury accidents of many kinds, including clinical negligence, worker's negligence and so forth. Product liability cases, such as those involving warranties, may also be considered negligence actions or, particularly in the United States, may apply regardless of negligence or intention through
strict liability In criminal law, criminal and Civil law (common law), civil law, strict liability is a standard of Public liability, liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of Tort, ...
. In order to win an action for negligence, a plaintiff must prove: duty, breach of duty, causation, scope of liability, and damages. Further, a defendant may assert various defenses to a plaintiff’s case, including comparative fault and assumption of risk. Intentional torts include, among others, certain torts arising from the occupation or use of land. The tort of nuisance, for example, involves strict liability for a neighbor who interferes with another's enjoyment of his real property. Trespass allows owners to sue for entrances by a person (or his structure, such as an overhanging building) on their land. Several intentional torts do not involve land. Examples include false imprisonment, the tort of unlawfully arresting or detaining someone, and defamation (in some jurisdictions split into libel and
slander Defamation (also known as calumny, vilification, libel, slander or traducement) is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime In ord ...
), where false information is broadcast and damages the plaintiff's reputation. Other intentional torts include Battery, Assault, Trespass to Chattels, Intentional Infliction of Emotional Distress, Misrepresentation, and Alienation of Affections. In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, workers' compensation laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside the traditional common law torts. These are loosely grouped into quasi-torts or liability torts.


Negligence

Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person. Although credited as appearing in the United States in ''Brown v. Kendall'', the later Scottish case of ''
Donoghue v Stevenson was a landmark court decision in Scots delict lawDelicts in Scots Law are Civil wrong, civil wrongs which are actionable in Scottish courts. The equivalent term in English law and other common law jurisdictions is known as tort law. The most di ...
'' [1932] AC 562, followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions. In ''Donoghue'', Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence. The elements in determining the liability for negligence are: * The plaintiff was owed a duty of care through a special relationship (e.g. doctor-patient) or some other principle * There was a dereliction or breach of that duty * The tortfeasor directly caused the injury [but for the defendant's actions, the plaintiff would not have suffered an injury]. * The plaintiff suffered damage as a result of that breach * The damage was not too remote; there was proximate cause to show the breach caused the damage In certain cases, negligence can be assumed under the doctrine of ''res ipsa loquitur'' (Latin for "the thing itself speaks"); particularly in the United States, a related concept is ''negligence per se''. For example, in the business realm, the auditor has a duty of care to the company they are auditing – that the documents created are a true and reliable representation of the company's financial position. However, as per Esanda Finance Corporation Ltd v Peat Marwick Hungerfords, Esanda Finance Corporation Ltd v. Peat Marwick Hungerfords, such auditors do NOT provide a duty of care to third parties who rely on their reports. An exception is where the auditor provides the third party with a privity letter, explicitly stating the third party can rely on the report for a specific purpose. In such cases, the privity letter establishes a duty of care. The case ''Chapman v Hearse'' added to the precedent of negligence where in previous cases reasonable foreseeability was applied narrowly to include all predictable actions, ''Chapman v Hearse'' extended this to include all damages of the same nature which could be reasonably foreseen.


Proximate cause

Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.. The defense may argue that there was a prior cause or a superseding intervening cause. A common situation where a prior cause becomes an issue is the personal injury car accident, where the person re-injures an old injury. For example, someone who has a bad back is injured in the back in a car accident. Years later, he is still in pain. He must prove the pain is caused by the car accident, and not the natural progression of the previous problem with the back. A superseding intervening cause happens shortly after the injury. For example, if, after the accident, the doctor who works on you commits malpractice and injures you further, the defense can argue that it was not the accident, but the incompetent doctor who caused your injury


Intentional torts

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories: *Torts against the person include assault (tort), assault, battery (tort), battery,
false imprisonment False imprisonment or unlawful imprisonment occurs when a person intentionally restricts another person’s movement within any area without legal authority, justification, or consent, the restrained person's permission. Actual physical restrain ...
, intentional infliction of emotional distress, and fraud, although the latter is also an economic tort. *Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognized include trespass to land, trespass to chattels (personal property), and conversion. An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy the intent requirement. Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.


Statutory torts

A statutory tort is like any other, in that it imposes duties on private or public parties, however they are created by the legislature, not the courts. For example, the European Union's ''Product Liability Directive'' imposes strict liability for defective products that harm people; such strict liability is not uncommon although not necessarily statutory. As another example, in England common law liability of a landowner to guests or trespassers was replaced by the Occupiers' Liability Act 1957; a similar situation occurred in the U.S. State of California in which a judicial common law rule established in ''Rowland v. Christian'' was amended through a 1985 statute. Statutory torts also spread across workplace health and safety laws and health and safety in food. In some cases federal or state statutes may preempt tort actions, which is particularly discussed in terms of the U.S. FDA Preemption; although actions in the United States for medical devices are preempted due to ''Riegel v. Medtronic, Inc.'' (2008), actions for medical drugs are not due to ''Wyeth v. Levine'' (2009).


Nuisance

"Nuisance" is traditionally used to describe an activity which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private nuisance) or the general public (public nuisance). The claimant can sue for most acts that interfere with their use and enjoyment of their land. In English law, whether activity was an illegal nuisance depended upon the area and whether the activity was "for the benefit of the commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet.Cavert W. (2009)
Right to Clean Air? Coal Smoke, Property, and Nuisance Law in Early Modern London
World Conference on Environmental History.
The case ''Jones v Powell'' (1629) provides an early example, in which a person's professional papers were damaged by the vapors of a neighboring brewery. Although the outcome of this case is unclear, Whitelocke of the Queen's Bench, Court of the King's Bench is recorded as saying that since the water supply in area was already contaminated, the nuisance was not actionable as it is "better that they should be spoiled than that the commonwealth stand in need of good liquor". In English law, a related category of tort liability was created in the case of ''Rylands v Fletcher'' (1868): strict liability was established for a dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. In ''Cambridge Water Co Ltd v Eastern Counties Leather plc'' (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs. The ''Rylands'' rule remains in use in England and Wales. In Australian law, it has been merged into negligence.


Defamation

Defamation is tarnishing the reputation of someone; it has two varieties, ''slander'' and ''libel''. Slander is spoken defamation and libel is printed or broadcast defamation. The two otherwise share the same features: making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the First Amendment to the Constitution of the United States, or Article 10 of the European Convention of Human Rights. Related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.


Business torts

Business torts (i.e., economic torts) typically involve commercial transactions, and include tortious interference with trade or contract, fraud, injurious falsehood, and negligent misrepresentation. Negligent misrepresentation torts are distinct from contractual cases involving misrepresentation in that there is no privity of contract; these torts are likely to involve pure economic loss which has been less-commonly recoverable in tort. One criterion for determining whether economic loss is recoverable is the "foreseeability" doctrine. The economic loss rule is highly confusing and inconsistently applied and began in 1965 from a California case involving strict liability for product defects; in 1986, the U.S. Supreme Court adopted the doctrine in ''East River S.S. Corp. v. Transamerica Deleval, Inc''. In 2010, the Washington Supreme Court, supreme court of the U.S. state of Washington replaced the economic loss doctrine with an "independent duty doctrine". Economic antitrust torts have been somewhat submerged by modern competition law. However, in the United States, private parties are permitted in certain circumstances to sue for anticompetitive practices, including under federal or state statutes or on the basis of common law tortious interference, which may be based upon the Restatement of Torts, Second, Restatement (Second) of Torts §766. Federal laws include the Sherman Antitrust Act of 1890 followed by the Clayton Antitrust Act which restrict cartels and through Federal Trade Commission regulate mergers and acquisitions. In the European Union, articles 101 and 102 of the Treaty on the Functioning of the European Union apply but allowing private actions to enforce antitrust laws is under discussion. Negligent misrepresentation as tort where no contractual privity exists was disallowed in England by ''Derry v Peek'' [1889]; however, this position was overturned in ''Hedley Byrne v Heller'' in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant. United States courts and scholars "paid lip-service" to ''Derry''; however, scholars such as William Prosser (academic), William Prosser argued that it was misinterpreted by English courts. The case of ''Ultramares Corporation v. Touche'' (1932) limited the liability of an auditor to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s. The Restatement of Torts, Second, Restatement (Second) of Torts expanded liability to "foreseeable" users rather than specifically identified "foreseen" users of the information, dramatically expanding liability and affecting professionals such as accountants, architects, attorneys, and surveying, surveyors. As of 1989, most U.S. jurisdictions follow either the ''Ultramares'' approach or the Restatement approach.Ballam DE. (1989)
The Expanding Scope of the Tort of Negligent Misrepresentation
''Loyola of Los Angeles Law Review''.
The tort of deceit for inducement into a contract is a tort in English law, but in practice has been replaced by actions under Misrepresentation Act 1967. In the United States, similar torts existed but have become superseded to some degree by contract law and the pure economic loss rule. Historically (and to some degree today), fraudulent (but not negligent) misrepresentation involving damages for economic loss may be awarded under the "benefit-of-the-bargain" rule (damages identical to expectation damages in contracts) which awards the plaintiff the difference between the value represented and the actual value. Beginning with ''Stiles v. White'' (1846) in Massachusetts, this rule spread across the country as a majority rule with the "out-of-pocket damages" rule as a minority rule.Lens JW. (2011)
Honest Confusion: The Purpose of Compensatory Damages in Tort and Fraudulent Misrepresentation
''Kansas Law Review''.
Although the damages under the "benefit-of-the-bargain" are described as compensatory, the plaintiff is left better off than before the transaction. Since the economic loss rule would eliminate these benefits if applied strictly, there is an exception to allow the misrepresentation tort if not related to a contract.


Liability, defenses, and remedies

Indirect liability may arise due to some involvement, notably through joint and several liability doctrines as well as forms of secondary liability. Liability may arise through enterprise liability. Other concepts include market share liability.


Vicarious liability

In certain cases, a person might be liable 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. Generally, this follows: ''If you want something done properly, do it yourself; if you get someone else to do it for you, then take the risk of their mistakes.''''


Defenses

A successful defense absolves the defendant from full or partial liability for damages. Apart from proof that there was no breach of duty, there are three principal defenses to tortious liability.


Consent and warning

Typically, a victim cannot hold another liable if the victim has implicitly or explicitly consented to engage in a risky activity. This is frequently summarized by the maxim "volenti non-fit injuria" (Latin: "to a willing person, no injury is done" or "no injury is done to a person who consents"). In many cases, those engaging in risky activities will be asked to sign a waiver releasing another party from liability. For example, spectators to certain sports are assumed to accept a risk of injury, such as a hockey puck or baseball striking a member of the audience. Warnings by the defendant may also provide a defense depending upon the jurisdiction and circumstances. This issue arises, for example, in the duty of care that landowners have for guests or trespasses, known as occupiers' liability.


Comparative or contributory negligence

If the victim has contributed to causing their own harm through negligent or irresponsible actions, the damages may be reduced or eliminated entirely. The English case Butterfield v. Forrester (1809) established this defense. In England, this "contributory negligence" became a partial defense, but in the United States, any fault by the victim completely eliminated any damages.Little WBL. (2007)
"It is Much Easier to Find Fault With Others, Than to be Faultless Ourselves": Contributory Negligence as a Bar to a Claim for Breach of the Implied Warranty of Merchantability
. ''Campbell Law Review''.
This meant that if the plaintiff was 1% at fault, the victim would lose the entire lawsuit. This was viewed as unnecessarily harsh and therefore amended to a
comparative negligence Comparative negligence, called non-absolute contributory negligence outside the United States The United States of America (USA), commonly known as the United States (U.S. or US), or America, is a country Contiguous United States, primaril ...
system in many states; as of 2007 contributory negligence exists in only a few states such as North Carolina and Maryland. In comparative negligence, the victim's damages are reduced according to the degree of fault. Comparative negligence has been criticized as allowing a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant. Economists have further criticized comparative negligence as not encouraging precaution under the calculus of negligence. In response, many states now have a 50% rule where the plaintiff recovers nothing if the plaintiff is more than 50% responsible.


Illegality

If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. The legal maxim ''ex turpi causa non-oritur actio'', Latin for "no right of action arises from a despicable cause". Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained but for the property owner's intervention.


Other defenses and immunities

Historically, immunity has been granted to governments under
sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine A legal doctrine is a framework, set of rules, Procedural law, procedural steps, or Test (law), test, often established through precedent in the common law, through which judgments ca ...
and to charitable organizations under charitable immunity, although these have eroded in the United States. Various laws limit liability when giving aid to a person in need; liability can arise from a failure to help due to the duty to rescue.


Remedies

The main remedy against tortious loss is compensation in
damages At common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used ...
or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defense against the tort of battery. 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 ''Miller v Jackson'' (1977). This means a command, for something other than money by the court, such as restraining the continuance or threat of harm. Usually injunctions will not impose positive obligations on tortfeasors, but some Australian jurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters.


Theory and reform

Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: Damages#Compensatory damages, compensatory, aggravation (law), aggravated, and punitive damages, punitive. British scholar Glanville Williams notes four possible bases on which different torts rested: appeasement, justice, deterrence and compensation. From the late 1950s a group of legally oriented economists and economically oriented lawyers known as law and economics scholars emphasized incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. Ronald Coase, a principal proponent, argued in ''The Problem of Social Cost'' (1960) that the aim of tort law, when transaction costs are high, should be to reflect as closely as possible the allocation of risk and liability at which private parties arrive when transaction costs are low. Since the mid-to-late 20th century, calls for reform of tort law have come from various perspectives. Some calls for reform stress the difficulties encountered by potential claimants. For example, because not all people who have accidents can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery". Consequently, in New Zealand, the government in the 1960s established a No-fault insurance, no-fault system of state compensation for Accident Compensation Corporation, accidents. Similar proposals have been the subject of command papers in the UK and much academic debate. In the U.S., reform has typically limited the scope of tort law and damages available, such as limiting joint and several liability, the collateral source rule, or capping noneconomic damages for
emotional distress In medicine, distress is an aversive state in which a person A person (plural people or persons) is a being that has certain capacities or attributes such as reason, morality, consciousness or self-consciousness, and being a part of a cultural ...
or punitive damages. These reform statutes are sometimes rejected as unconstitutional under the State constitution (United States), state constitutions by state supreme courts, with the Seventh Amendment to the United States Constitution possibly also relevant. Theoretical and policy considerations are central to fixing liability for pure economic loss and of public bodies.


Relationship to contract law

Tort is sometimes viewed as the causes of action which are not defined in other areas such as contract or fiduciary law.Harpwood V. (2009)
Modern Tort Law, 7th Edition
Routledge
Ch. 1 available as sample
However, tort and contract law are similar in that both involve a breach of duties, and in modern law these duties have blurred and it may not be clear whether an action "wiktionary:sound, sounds in tort or contract"; if both apply and different standards apply for each (such as a statute of limitations), courts will determine which is the "gravamen" (the most applicable). Circumstances such as those involving professional negligence may involve both torts and contracts. The choice may affect time limits or damages, particularly given that damages are typically relatively limited in contract cases while in tort cases noneconomic
damages At common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used ...
such as pain and suffering may be awarded. Punitive damages are relatively uncommon in contractual cases versus tort cases. However, compensation for defective but not unsafe products is typically available only through contractual actions through the law of warranty. In the United Kingdom, plaintiffs in professional negligence cases have some degree of choice in which law while in commercial transactions contract law applies; in unusual cases, intangible losses have been awarded in contract law cases. The English case Hadley v Baxendale, ''Hadley v. Baxendale'' (1854), which was adopted in the United States, split contract and tort damages by foreseeability of the damages when the contract was made. In the United States, the pure economic loss rule was adopted to further prevent negligence lawsuits in breach of contract cases. This "economic loss rule" was adopted by the Supreme Court of the United States ''East River Steamship Corp V Transamerica Delaval Inc.'' (1986) and expanded across the country in a non-uniform manner, leading to confusion. Among other examples, the tort of insurance bad faith arises out of a contractual relationship, and "collateral torts" such as wrongful dismissal involving possible overlap with labour law contracts.


Overlap with criminal law

There is some overlap between criminal law and tort. For example, in English law an assault is both a crime and a tort (a form of trespass to the person). A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of
damages At common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used ...
to a person injured in a car accident, or the obtaining of injunctive relief to stop a person interfering with their business). Criminal actions on the other hand are pursued not to obtain remedies to assist a personalthough often criminal courts do have power to grant such remediesbut to remove their liberty on the state's behalf. This explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts. In early common law, the distinction between crime and tort was not distinct. The more severe penalties available in criminal law also means that it requires a higher Legal burden of proof, burden of proof to be discharged than the related tort. For example, in the O. J. Simpson murder case, O. J. Simpson murder trial, the jury was not convinced beyond reasonable doubt that O. J. Simpson had committed the crime of murder; but in a later civil trial, the jury in that case decided that there was sufficient evidence to meet the standard of preponderance of the evidence required to prove the tort of
wrongful death Wrongful death is a claim against a person who can be held liable for a death. The claim is brought in a civil action A lawsuit is a proceeding by a party or parties against another in the civil court of law A court is any person or ...
. Many jurisdictions, especially the US, retain punitive damages, punitive elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with criminal acts. Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment. Some torts may have a public elementfor example, nuisance, public nuisanceand sometimes actions in tort will be brought by a public body. Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restitution which criminal courts can directly order the defendant to pay to the victim.


Law and economics

William M. Landes, Richard A. Posner, and Steven Shavell have initiated a line of research in the law and economics literature that is focused on identifying the effects of tort law on people's behavior. These studies often make use of concepts that were developed in the field of game theory.


See also

* Outline of tort law * Causation in English law * Index of tort articles * ''Journal of Tort Law''


Notes


References


Citations


Sources

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Further reading

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External links

* * * {{Authority control Tort law,