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A tort is a
civil wrong Civil may refer to: * Civic virtue, or civility *Civil action, or lawsuit * Civil affairs *Civil and political rights * Civil disobedience *Civil engineering * Civil (journalism), a platform for independent journalism *Civilian, someone not a m ...
that causes a claimant to suffer loss or harm, resulting in
legal liability In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government a ...
for the person who commits the tortious act. Tort law can be contrasted with
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most 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 An assault is the act of committing 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 and a tort and, therefore, may result in cr ...
and
battery Battery most often refers to: * Electric battery, a device that provides electrical power * Battery (crime), a crime involving unlawful physical contact Battery may also refer to: Energy source *Automotive battery, a device to provide power t ...
, 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 A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to t ...
, 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 Roman law is the 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 ...
,
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
jurisdictions derive their tort law from customary
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 criminal law, that usually requ ...
. 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 (e.g. Québec, St Lucia, Mauritius) or due to influence from multiple legal traditions when their civil codes were drafted (e.g. Mainland China, the Philippines, and Thailand). 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 At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
, or money. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an
injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in p ...
, such as in the English case of ''
Miller v Jackson ''Miller v Jackson'' 977QB 966 is a famous Court of Appeal of England and Wales case in the torts of negligence and nuisance. The court considered whether the defendant - the chairman of a local cricket club, on behalf of its members - was liab ...
''. Usually injunctions will not impose positive obligations on tortfeasors, but some jurisdictions, such as those in Australia, can make an order for
specific performance Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. It is typically available in the sale of land law, ...
to ensure that the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisd ...
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 (France) or civil responsibility (Québec). In
comparative law Comparative law is the study of differences and similarities between the law (legal systems) of different countries. More specifically, it involves the study of the different legal "systems" (or "families") in existence in the world, including the ...
, 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 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 in favor of t ...
, can recover their losses as
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
in a
lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
. 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 Fines may refer to: * Fines, Andalusia, Spanish municipality * Fine (penalty) * Fine, a dated term for a premium on a lease of land, a large sum the tenant pays to commute (lessen) the rent throughout the term *Fines, ore or other products with a s ...
for wrongs, with no clear distinction between crimes and other wrongs. In
Anglo-Saxon law Anglo-Saxon law (Old English ''ǣ'', later ''lagu'' "law"; dōm "decree, judgment") is a body of written rules and customs that were in place during the Anglo-Saxon period in England, before the Norman conquest. This body of law, along with early ...
, most wrongs required payment in money paid to the wronged person or their clan. Fines in the form of ''wīte'' (literally 'blame, fault') were paid to the king or holder of a court for disturbances of public order, while the fine of ''
weregild Weregild (also spelled wergild, wergeld (in archaic/historical usage of English), weregeld, etc.), also known as man price (blood money), was a precept in some archaic legal codes whereby a monetary value was established for a person's life, to b ...
'' was imposed on those who committed murder with the intention of preventing 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 families or clans. Feuds begin because one par ...
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 deodands.
Alfred the Great Alfred the Great (alt. Ælfred 848/849 – 26 October 899) was King of the West Saxons from 871 to 886, and King of the Anglo-Saxons from 886 until his death in 899. He was the youngest son of King Æthelwulf and his first wife Osburh, who bo ...
's Doom Book distinguished unintentional injuries from intentional ones, and defined culpability based on status, age, and gender. After the
Norman Conquest The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Norman, Breton, Flemish, and French troops, all led by the Duke of Normandy, later styled William the Conq ...
, 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 The courts of assize, or assizes (), were periodic courts held around England and Wales until 1972, when together with the quarter sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The 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 tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery, woundi ...
action was an early civil
plea In legal terms, a plea is simply an answer to a claim made by someone in a criminal case under common law using the adversarial system. Colloquially, a plea has come to mean the assertion by a defendant at arraignment, or otherwise in response ...
in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. It arose in local courts for
slander Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
,
breach of contract Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other part ...
, 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, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses. Etymology The word "replev ...
. Later, after the
Statute of Westminster 1285 The Statute of Westminster of 1285, also known as the Statute of Westminster II or the Statute of Westminster the Second, like the Statute of Westminster 1275, is a code in itself, and contains the famous clause '' De donis conditionalibus'', one ...
, 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 systems,Encyclopædia Britannica CD 2000 "Civil-law public carrier" from "carriage of goods" usually called simply a ''carrier'') is a person or compan ...
, 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 Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family ...
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.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 of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1770. The work is divided into four volum ...
'', 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 Privacy (, ) is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively. The domain of privacy partially overlaps with security, which can include the concepts of ...
, property, or constitutional rights. Torts comprise such varied topics as automobile accidents, false imprisonment,
defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
,
product liability Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has b ...
,
copyright infringement Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, ...
, and environmental pollution (
toxic torts A toxic tort claim is a specific type of personal injury lawsuit in which the plaintiff claims that exposure to a chemical or dangerous substance caused the plaintiff's injury or disease. Place of exposure People may be exposed to toxic chemi ...
). Modern torts are heavily affected by insurance and
insurance law Insurance law is the practice of law surrounding insurance, including insurance policies and claims. It can be broadly broken into three categories - regulation of the business of insurance; regulation of the content of insurance policies, especial ...
, as many cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with the
insurance policy In insurance, the insurance policy is a contract (generally a standard form contract) between the insurer and the policyholder, which determines the claims which the insurer is legally required to pay. In exchange for an initial payment, known a ...
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 due by operation of law, notably through
joint and several liability Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be: * jointly liable, or * severally liable, or * jointly and severally liable. Joint liability If parties have joint liabili ...
doctrines as well as forms of secondary liability. Liability may arise through
enterprise liability Enterprise liability is a legal doctrine under which individual entities (for example, otherwise legally unrelated corporations or people) can be held jointly liable for some action on the basis of being part of a shared enterprise. Enterprise liab ...
or, in product liability cases in the United States, market share liability. In certain cases, a person might hold
vicarious liability Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, '' respondeat superior'', the responsibility of the superior for the acts of their subordinate or, in a broader sense, the re ...
for their employee or child under the
law of agency The law of agency is an area of commercial law dealing with a set of contractual, quasi-contractual and non-contractual fiduciary relationships that involve a person, called the agent, that is authorized to act on behalf of another (called the ...
through the doctrine of
respondeat superior ''Respondeat superior'' ( Latin: "let the master answer"; plural: ''respondeant superiores'') is a doctrine that a party is responsible for (has vicarious liability for) acts of their agents.''Criminal Law - Cases and Materials'', 7th ed. 2012, ...
. 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 In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
for ultrahazardous activities. Under the precedent established in the English case of
Rylands v Fletcher ''Rylands v Fletcher'' (1868) LR 3 HL 330 is a leading decision by the House of Lords which established a new area of English tort law. It established the rule that one's non-natural use of their land, which leads to another's land being damaged ...
, 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.''MC Mehta v Union of India'' AIR 1987 SC 1086 (Oleum Gas Leak Case). 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 Patrick Selim Atiyah, (5 March 1931 – 30 March 2018) was an English lawyer and academic. He was best known for his work as a common lawyer, particularly in the law of contract and for advocating reformation or abolition of the law of tort. ...
's scholarship as articulated in ''Accidents, Compensation and the Law'' (1970). 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 (see The Woodhouse Report).P.S. Atiyah (1997) ''The Damages Lottery'', Ch.8 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 (e.g.
sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
,
charitable immunity Charitable immunity is a legal doctrine which holds that a charitable organization is not liable under tort law. It originated in 19th-century Great Britain. History The early form of charitable immunity in England did not provide immunity from ...
), comparative negligence, broader rules for admitting evidence, increased damages for
emotional distress In medicine, distress is an aversive state in which a person is unable to completely adapt to stressors and their resulting stress and shows maladaptive behaviors. It can be evident in the presence of various phenomena, such as inappropriate so ...
, and
toxic tort A toxic tort claim is a specific type of personal injury lawsuit in which the plaintiff claims that exposure to a chemical or dangerous substance caused the plaintiff's injury or disease. Place of exposure People may be exposed to toxic chemi ...
s and
class action A class action, also known as a class-action lawsuit, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group. The class actio ...
lawsuits. However, there has also been a reaction in terms of
tort reform Tort reform refers to changes in the civil justice system in common law countries that aim to reduce the ability of plaintiffs to bring tort litigation (particularly actions for negligence) or to reduce damages they can receive. Such changes a ...
, 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.


Categories of torts in common law jurisdictions

Torts may be categorised 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 Labour laws (also known as labor laws or employment laws) are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship between employee, ...
such as intentional infliction of emotional distress ("outrage"); or
wrongful dismissal In law, wrongful dismissal, also called wrongful termination or wrongful discharge, is a situation in which an employee's contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contra ...
; these evolving causes of action are debated and overlap with
contract law A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to t ...
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''.
In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas,
workers' compensation Workers' compensation or workers' comp is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her emp ...
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

The tort of negligence is a cause of action leading to relief designed to protect legal rights from actions which, although unintentional, nevertheless cause some form of legal harm to the plaintiff. 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 defences to a plaintiff’s case, including comparative fault and assumption of risk. 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 In law, a reasonable person, reasonable man, or the man on the Clapham omnibus, is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions. Strictly according to the fiction, it i ...
. Although credited as appearing in the United States in '' Brown v. Kendall'', the later Scottish case of '' Donoghue v Stevenson'' 932AC 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. In most common law jurisdictions, there are four elements to a negligence action: #duty: the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisd ...
has a duty to others, including 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 in favor of t ...
, to exercise reasonable care #breach: the defendant breaches that duty through an act or culpable omission #damages: as a result of that act or omission, the plaintiff suffers an injury #causation: the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or omission under the proximate cause doctrine. Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm. Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages. However, at their heart, the various definitions of what constitutes negligent conduct are very similar. Depending on jurisdiction,
product liability Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has b ...
cases such as those involving warranties may be considered negligence actions or fall under a separate category of
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
torts. Similarly, cases involving environmental or consumer health torts which other countries treat as negligence or strict liability torts are treated in
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area, the List of countries and dependencies by population, second-most populous ...
as absolute liability torts. In establishing whether a duty of care exists, different common law jurisdictions have developed a variety of distinct but related approaches, with many jurisdictions building on the test established in '' Anns v Merton LBC''. In Singapore, the current leading case is ''
Spandeck Engineering v Defence Science and Technology Agency Spandeck Engineering v Defence Science and Technology Agency 007SGCA 37 was a landmark decision in Singapore law. It established a new framework for establishing a duty of care, differentiating the Singaporean law of tort from past English co ...
'', which builds on ''Anns'' by establishing a two step test comprising an analysis of proximate cause and
public policy Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public ...
as a universal test, independent from the individual circumstances of a given case, for determining the existence of a duty of care. The Supreme Court of Canada established a similar test in the context of assessing damages for
pure economic loss Economic loss is a term of art which refers to financial loss and damage suffered by a person which is seen only on a balance sheet and not as physical injury to person or property. There is a fundamental distinction between pure economic loss an ...
owing to negligence derived from ''Anns'' which consists of a two step examination of the existence of a sufficiently proximate relationship between the parties and public policy considerations; however, the Canadian test is more sensitive to the individual circumstances of a given case and the first step is generally deemed to be met where a case falls into one of three sets of circumstances recognised by precedent while the Singaporean test is independent of precedent. In English tort law, '' Caparo Industries plc v Dickman'' established a tripartite test for the existence of a duty of care per which harm must be reasonably foreseeable as a potential result of the defendant's conduct; the parties must be in a relationship of proximity; and it must be fair, just, and reasonable to impose such a duty.


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 An assault is the act of committing 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 and a tort and, therefore, may result in cr ...
,
battery Battery most often refers to: * Electric battery, a device that provides electrical power * Battery (crime), a crime involving unlawful physical contact Battery may also refer to: Energy source *Automotive battery, a device to provide power t ...
, false imprisonment, intentional infliction of emotional distress, and fraud, although the latter is also an
economic tort Economic torts, which are also called business torts, are torts that provide the common law rules on liability which arise out of business transactions such as interference with economic or business relationships and are likely to involve pure eco ...
. *Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognised include trespass to land, trespass to chattels (personal property), and conversion. *Dignitary torts are a category of intentional tort affecting the honour, dignity, and reputation of an individual and include:
Defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
, invasion of privacy,
breach of confidence The tort of breach of confidence is, in United States law, a common law tort that protects private information that is conveyed in confidence. A claim for breach of confidence typically requires the information to be of a confidential nature, wh ...
, torts related to the justice system such as malicious prosecution and
abuse of process An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It is a claim made by the respondent or defendant that the other party is misusing ...
, and torts pertaining to sexual relations that are considered obsolete in most common law jurisdictions such as alienation of affection and criminal conversation. 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.


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
Court of the King's Bench The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law in the English legal system. Created in the late 12th to early 13th century from the '' curia regis'', the King's Bench initi ...
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 ''Rylands v Fletcher'' (1868) LR 3 HL 330 is a leading decision by the House of Lords which established a new area of English tort law. It established the rule that one's non-natural use of their land, which leads to another's land being damaged ...
'' (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.


Economic torts

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 Privity is the legal term for a close, mutual, or successive relationship to the same right of property or the power to enforce a promise or warranty. It is an important concept in contract law. Contract law {{main article, Privity of contract The ...
of contract; these torts are likely to involve
pure economic loss Economic loss is a term of art which refers to financial loss and damage suffered by a person which is seen only on a balance sheet and not as physical injury to person or property. There is a fundamental distinction between pure economic loss an ...
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 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 Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
. 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 (Second) of Torts The American ''Restatement of Torts, Second'', is a treatise issued by the American Law Institute. It summarizes the general principles of common law United States tort law This article addresses torts in United States law. As such, it covers pri ...
§766. Negligent misrepresentation as tort where no contractual
privity Privity is the legal term for a close, mutual, or successive relationship to the same right of property or the power to enforce a promise or warranty. It is an important concept in contract law. Contract law {{main article, Privity of contract The ...
exists was disallowed in England by ''
Derry v Peek ''Derry v Peek'' 889UKHL 1is a case on English contract law, Misrepresentation">fraudulent misstatement, and the tort of deceit. ''Derry v Peek'' established a 3-part test for fraudulent misrepresentation, whereby the defendant is fraudulent if ...
''
889 __NOTOC__ Year 889 ( DCCCLXXXIX) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Guy III, duke of Spoleto, defeats the Lombard king Berengar I at the ...
however, this position was overturned in ''
Hedley Byrne v Heller ''Hedley Byrne & Co Ltd v Heller & Partners Ltd'' 964AC 465 is an English tort law case on economic loss in English tort law resulting from a negligent misstatement. Prior to the decision, the notion that a party may owe another a duty of care ...
'' 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 William Prosser may refer to: *William Lloyd Prosser William Lloyd Prosser (March 15, 1898 – 1972) was the Dean of the School of Law at UC Berkeley from 1948 to 1961. Prosser authored several editions of ''Prosser on Torts'', universally rec ...
argued that it was misinterpreted by English courts. The case of '' Ultramares Corporation v. Touche'' (1932) limited the liability of an
auditor An auditor is a person or a firm appointed by a company to execute an audit.Practical Auditing, Kul Narsingh Shrestha, 2012, Nabin Prakashan, Nepal To act as an auditor, a person should be certified by the regulatory authority of accounting and a ...
to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s. The
Restatement (Second) of Torts The American ''Restatement of Torts, Second'', is a treatise issued by the American Law Institute. It summarizes the general principles of common law United States tort law This article addresses torts in United States law. As such, it covers pri ...
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 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 The Misrepresentation Act 1967 is a United Kingdom Act of Parliament of the United Kingdom which amended the common law principles of misrepresentation. Prior to the Act, the common law deemed that there were two categories of misrepresentati ...
. 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.


Remedies and defences in common law jurisdictions

The remedies and defences available in common law jurisdictions are typically similar, deriving from judicial precedent with occasional legislative intervention. Compensation by way of damages is typically the default remedy available to plaintiffs, with injunctions and specific performance being relatively rare in tort law cases. Relatively uniquely for a common law jurisdiction, Singapore's Community Disputes Resolution Act 2015 (CDRA) alters the common law by codifying a statutory tort of "interference with enjoyment or use of place of residence" and provides for a variety of remedies beyond damages, ranging from injunctions and specific performance to court-ordered apologies. Where a court order providing for a remedy other than damages is awarded under the CDRA is violated, sections 5-8 of the act require that the plaintiff apply for a 'special direction' to be issued in order to enforce the original remedy and section 9 provides that failure to comply with a special direction is grounds for the court to issue an order excluding the tortfeasor from their residence. Aside from legislatively created remedies such as the CDRA, courts in common law jurisdictions will typically provide for
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
(which, depending on jurisdiction, may include
punitive damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
), but judges will issue injunctions and specific performance where they deem damages not to be a sufficient remedy. Legislatures in various common law jurisdictions have curtailed the ability of judges to award punitive or other non-economic damages through the use of
non-economic damages caps Non-economic damages caps are tort reforms to limit (''i.e.'', "cap") damages in lawsuits for subjective, non-pecuniary harms such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, loss of consortium, and ...
and other
tort reform Tort reform refers to changes in the civil justice system in common law countries that aim to reduce the ability of plaintiffs to bring tort litigation (particularly actions for negligence) or to reduce damages they can receive. Such changes a ...
measures. Apart from proof that there was no breach of duty (in other words, that a tortious act was not committed in the first place), there are three principal defences to tortious liability in common law jurisdictions: *
Consent Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...
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 summarised by the maxim "
volenti non fit injuria ''Volenti non fit iniuria'' (or ''injuria'') (Latin: "to a willing person, injury is not done") is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of h ...
" (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 A waiver is the voluntary relinquishment or surrender of some known right or privilege. Regulatory agencies of state departments or the federal government may issue waivers to exempt companies from certain regulations. For example, a United St ...
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 defence 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 general linguistics, the comparative is a syntactic construction that serves to express a comparison between two (or more) entities or groups of entities in quality or degree - see also comparison (grammar) for an overview of comparison, as well ...
or
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
: If the victim has contributed to causing their own harm through negligent or irresponsible actions, the damages may be reduced or eliminated entirely. **Contributory negligence: The English case Butterfield v. Forrester (1809) established this defence. In England, this "
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
" became a partial defence, 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 system in many states; as of 2007 contributory negligence exists in only a few states such as North Carolina and Maryland. ** Comparative negligence: In comparative negligence, the victim's damages are reduced according to the degree of fault. Comparative negligence has been criticised as allowing a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant. Economists have further criticised comparative negligence as not encouraging precaution under the
calculus of negligence In the United States, the calculus of negligence, also known as the Hand rule, Hand formula, or BPL formula, is a term coined by Judge Learned Hand which describes a process for determining whether a legal duty of care has been breached (see n ...
. 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 defences and immunities: **
Sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
** Good Samaritan laws, especially in jurisdictions with a statutory or common law duty to rescue **
Charitable immunity Charitable immunity is a legal doctrine which holds that a charitable organization is not liable under tort law. It originated in 19th-century Great Britain. History The early form of charitable immunity in England did not provide immunity from ...


Discovery in tort litigation

Discovery (or disclosure), a concept unique to common law jurisdictions, is a pre-trial procedure in a
lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
in which each party, through the law of
civil procedure Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what kin ...
, can open-endedly demand evidence from the other party or parties by means of discovery devices such as
interrogatories In law, interrogatories (also known as requests for further information) are a formal set of written questions propounded by one litigant and required to be answered by an adversary in order to clarify matters of fact and help to determine in a ...
, requests for production of documents, requests for admissions and
deposition Deposition may refer to: * Deposition (law), taking testimony outside of court * Deposition (politics), the removal of a person of authority from political power * Deposition (university), a widespread initiation ritual for new students practiced f ...
s. Discovery can be obtained from non-parties using
subpoena A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...
s. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery. In tort litigation, the availability of discovery enables plaintiffs to essentially carry out a private investigation, subpoenaing records and documents from the defendant. Consequently, commentators in civil law jurisdictions regard discovery destructive of the
rule of law The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannic ...
and as "a private inquisition." Civil law countries see the underlying objectives of discovery as properly monopolised by the state in order to maintain the rule of law: the investigative objective of discovery is the prerogative of the
executive branch The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems ...
, and insofar as discovery may be able to facilitate the creation of new rights, that is the prerogative of the
legislative branch A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known ...
. The availability of discovery in common law jurisdictions means that plaintiffs who, in other jurisdictions, would not have sufficient evidence upon which to file a tort claim are able to do so in the hope that they will be able to obtain sufficient evidence through discovery. The primary drawbacks of this are that, on one hand, it creates the possibility that a plaintiff filing suit in good faith may not find enough evidence to succeed and incur legal expenses driven upward due to the cost of discovery; and, on the other hand, that it enables plaintiffs arguing in bad faith to initiate frivolous tort lawsuits and coerce defendants into agreeing to legal settlements in otherwise unmeritorious actions.


Variation between common law jurisdictions

Among common law countries today, there are significant differences in tort law. Common law systems include United States tort law, Australian tort law,
Canadian tort law Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed dist ...
,
Indian tort law Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts. As in other common law jurisdictions, a tort is b ...
, and the tort law of a variety of jurisdictions in Asia and Africa. There is a more apparent split in tort law between the Commonwealth countries and the United States.Cane P. (2012)
Searching for United States Tort Law in the Antipode
''Pepperdine Law Review''.
Despite diverging from English common law in 1776, earlier than the other common law jurisdictions; United States tort law was influenced by English law and Blackstone's ''Commentaries'', with several state constitutions specifically providing for redress for torts in addition to
reception statute A 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 globally 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 and legal scholar who served as an associate justice of the Supreme Court of the United States from 1902 to 1932.Holmes was Acting Chief Justice of the Un ...
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. ''Palsgraf v. Long Island Railroad Co.'', 248 N.Y. 339, 162 N.E. 99 (1928), is a leading case in American tort law on the question of liability to an unforeseeable plaintiff. The case was heard by the New York Court of Appeals, the highest ...
heavily influenced the British judges in the 1932
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
case of Donoghue v Stevenson. The United States has since been perceived as particularly prone to filing tort lawsuits even relative to other common law countries, although this perception has been criticised and debated. Atiyah PS. (1987)
Tort Law and the Alternatives: Some Anglo-American Comparisons
''Duke Law Journal''.
20th century academics have identified that class actions were relatively uncommon outside of the United States, noting that the English law was less generous to the plaintiff in the following ways: contingent fee arrangements were restricted, English judges tried more decisions and set
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
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. The English
welfare state A welfare state is a form of government in which the state (or a well-established network of social institutions) protects and promotes the economic and social well-being of its citizens, based upon the principles of equal opportunity, equita ...
, which provides free healthcare to victims of injury, may explain the lower tendency towards personal injury lawsuits in England. A similar observation has also been made with regard to
Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
. While Indian tort law is generally derived from
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...
, there are certain differences between the two systems. Indian tort law uniquely includes remedies for constitutional torts, which are actions by the government that infringe upon rights enshrined in the
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these pr ...
, as well as a system of absolute liability for businesses engaged in hazardous activity as outlined in the rule in M. C. Mehta v. Union of India. Similar to other common law jurisdictions, conduct which gives rise to a cause of action under tort law is additionally criminalised by the
Indian Penal Code The Indian Penal Code (IPC) is the official criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. The code was drafted on the recommendations of first law commission of India established ...
, which was originally enacted in 1860. As a result of the influence of its relatively early codification of criminal law, the torts of assault, battery, and false imprisonment are interpreted by Indian courts and the courts of jurisdictions that were formerly part of the
British Indian Empire The British Raj (; from Hindi ''rāj'': kingdom, realm, state, or empire) was the rule of the British Crown on the Indian subcontinent; * * it is also called Crown rule in India, * * * * or Direct rule in India, * Quote: "Mill, who was himse ...
(e.g. Pakistan, Bangladesh) and British colonies in South East Asia which adopted the Indian Penal Code (i.e. Singapore, Malaysia, and Brunei) with reference to analogous crimes outlined in the code. For instance, assault is interpreted in the context of s.351 per which the following criteria constitute assault:The Indian Penal Code Act No. 45 of 1860 s 351. *Making of any gesture or preparation by a person in the presence of another. *Intention or knowledge of likelihood that such gesture or preparation will cause the person present to apprehend that the person making it is about to use criminal force on them. Similarly, battery is interpreted in the context of criminal force as outlined in s.350. An area of tort unique to India is the constitutional tort, a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle. In practice, constitutional torts in India serve the role served by
administrative court An administrative court is a type of court specializing in administrative law, particularly disputes concerning the exercise of public power. Their role is to ascertain that official acts are consistent with the law. Such courts are considered s ...
s in many civil law jurisdictions and much of the function of constitutional review in other jurisdictions, thereby functioning as a branch of
administrative law Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as " regulations"), ...
rather than
private law Private law is that part of a civil law legal system which is part of the '' jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ...
. Rather than developing principles of administrative fairness as a distinct branch of law as other common law jurisdictions have, Indian courts have thus extended tort law as it applies between private parties to address unlawful administrative and legislative action. Within Canada's common law provinces, there is currently no consistent approach to the tort of invasion of privacy. Four provinces (British Columbia, Manitoba, Newfoundland and Saskatchewan) have created a statutory tort. Ontario has recognised the existence of the tort of " intrusion upon seclusion", which has also been held to exist under tort law in the United States. British Columbia, on the other hand, has held that the tort does not exist in that province under the common law.See ''Ari v Insurance Corporation of British Columbia'', 2013 BCSC 1308

/ref> Like the United Kingdom and British Columbia, but unlike Ontario and most jurisdictions in the United States, Indian tort law does not traditionally recognise a common law tort of invasion of privacy or Intrusion on Seclusion, intrusion on seclusion. Nevertheless, there is a shift in jurisprudence toward recognising breech of
confidentiality Confidentiality involves a set of rules or a promise usually executed through confidentiality agreements that limits the access or places restrictions on certain types of information. Legal confidentiality By law, lawyers are often required ...
as an actionable civil wrong. Proponents of protection for privacy under Indian tort law argue that “the
right to privacy The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 194 ...
is implicit” in Article 21 of the
Constitution of India The Constitution of India ( IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ...
, which guarantees protections for personal liberties. Despite the lack of a tort addressing violations of privacy by private individuals, the Supreme Court recognised privacy as a constitutional right in 2017. Similarly, neither intentional infliction of emotional distress (IIED) nor negligent infliction of emotional distress (NIED) is recognised as a tort in Indian jurisprudence. While claims seeking damages for infliction of emotional distress were historically an accessory claim in a tort action alleging another distinct tort, the doctrine has evolved in North America into a stand-alone tort while English jurisprudence has evolved to typically recognise only recognised psychiatric injuries as grounds for compensation. Indian courts, while recognising the infliction of emotional distress regardless of intention as an actionable wrong in matrimonial disputes, typically follow the English approach, although case law from both the United Kingdom and North America is frequently employed by judges ruling on cases in which damages for mental distress are sought.


Scots and Roman Dutch law

Both Scots and Roman Dutch law are uncodified,
scholarship A scholarship is a form of financial aid awarded to students for further education. Generally, scholarships are awarded based on a set of criteria such as academic merit, diversity and inclusion, athletic skill, and financial need. Scholars ...
-driven, and judge-made
legal system The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history an ...
s based on
Roman law Roman law is the 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 ...
as historically applied in the
Netherlands ) , anthem = ( en, "William of Nassau") , image_map = , map_caption = , subdivision_type = Sovereign state , subdivision_name = Kingdom of the Netherlands , established_title = Before independence , established_date = Spanish Netherl ...
and
Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...
during the Enlightenment. In both legal systems, when applied in English speaking countries, the term delict is used to refer to tortious liability (unlike, for instance, in Spain where the cognate of the term delict refers to a criminal offence). Unlike in systems based on civil codes or on the English common law, Scots and Roman Dutch law operate on broad principles of liability for wrongdoing; there is no exhaustive list of named delicts in either system; if the conduct complained of appears to be wrongful, the law will afford a remedy even in the absence of precedent pertaining to similar conduct. In South Africa and neighbouring countries, the Roman Dutch law of delict is in force, having been preserved after the United Kingdom annexed Dutch settlements in South Africa and spread as neighbouring British colonies adopted South African law via
reception statute A 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. Roman Dutch law also forms the basis for the legal systems of Indonesia, Suriname, Timor Leste, and the Dutch Caribbean.


Elements of delict

The elements of a delict as follows: The elements of harm and conduct are fact-based inquiries, while causation is part-factual and part-normative, and wrongfulness and fault are entirely normative: that is, value-based, in that they articulate a wider societal policy perspective. Delict is "inherently a flexible set of principles that embody social policy." # harm sustained by the plaintiff; # conduct on the part of the defendant which is wrongful; # a causal connection between the conduct and the plaintiff's harm; and # fault or blameworthiness on the part of the defendant.


Remedies under Scots and Roman Dutch law of delict

Under the Scots and Roman Dutch law of delict, there are two main remedies available to plaintiffs: * the '' actio legis Aquiliae'', or Aquilian action, which relates to patrimonial loss (i.e. economic damages); * the ''
actio iniuriarum The ''actio iniuriarum'' is an action for delict which "not only seeks to protect an individual's dignity and reputation but also his or her physical integrity." Harm or loss The harm or loss which gives rise to the ''actio iniuriarum'' is a viol ...
'', which relates to injuries to non-patrimonial loss (i.e. non-economic damages); Protected interests which can give rise to delictual liability can be broadly divided into two categories: patrimonial and non-patrimonial interests. Patrimonial interests are those which pertain to damages to an individual's body or property, which both Scots and Roman Dutch law approach in the context of the Roman Lex Aquilia. Non-patrimonial interests include dignitary and personality related interests (e.g. defamation, disfigurement, unjust imprisonment) which cannot be exhaustively listed which are addressed in the context of the Roman
Actio iniuriarum The ''actio iniuriarum'' is an action for delict which "not only seeks to protect an individual's dignity and reputation but also his or her physical integrity." Harm or loss The harm or loss which gives rise to the ''actio iniuriarum'' is a viol ...
, as well as pain and suffering which are addressed under jurisprudence that has developed in modern times. In general; where an individual violates a patrimonial interest, they will incur Aquilian liability; and, where an individual violates a non-patrimonial interest, they will incur liability stemming from the actio iniuriarum. While broadly similar due to their common origin, the nature of the remedies available under contemporary Scots and Roman Dutch law vary slightly, although the aquilian action and actio iniuriarum are the primary remedies available under both systems. The primary difference between the two remedies is that the aquilian action serves a compensatory function (i.e. providing economic damages to restore the plaintiff to their previous state) while the actio iniuriarum provides for non-economic damages aimed at providing solace to the plaintiff. In Roman Dutch law (but not in Scots law), there is also a distinct action for pain and suffering relating to pain and suffering and psychiatric injury, which provides for non-economic damages similar to those under the actio iniuriarum. The various delictual actions are not mutually exclusive. It is possible for a person to suffer various forms of harm at the same time, which means that a person may simultaneously claim remedies under more than one action. The elements of liability under the ''actio iniuriarum'' are as follows: * harm, in the form of a violation of a non-patrimonial interest (one's ''corpus'', ''dignitas'' and ''fama''); * wrongful conduct; and * intention. There are five essential elements for liability in terms of the '' actio legis Aquiliae'': # The
harm Harm is a moral and legal concept. Bernard Gert construes harm as any of the following: * pain * death * disability * mortality * loss of abil ity or freedom * loss of pleasure. Joel Feinberg gives an account of harm as setbacks to inte ...
must take the form of patrimonial loss. # The conduct must take the form of a positive act or an omission or statement. # The conduct must be wrongful: that is to say, objectively unreasonable and without lawful justification. # One must be at fault, and one's blameworthiness must take the form of ''dolus'' (intention) or ''culpa'' (negligence). One must, however, be accountable for one's conduct before one can be blameworthy. # There must be causation both factual and legal. For the former, the conduct must have been a ''sine qua non'' of the loss; for the latter, the link must not be too tenuous. In Scots law, the aquilian action has developed more expansively and may be invoked as a remedy for both patrimonial and certain types of non-patrimonial loss, particularly with regard to personal injury. By way of a
legal fiction A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales. Deve ...
, 'personal injury' is treated as (physical) 'damage done', with the net effect that 'the ''actio injuriarum'' root of Scots law infuses the ominatedelict assault as much as any development of the ''lex Aquilia and wrongdoing that results in physical harm to a person may give rise to both an aquilian action and an actio iniuriarum. Additionally, the modern Scots law pertaining to reparation for negligent wrongdoing is based on the ''lex Aquilia'' and so affords reparation in instances of ''
damnum injuria datum The ''lex Aquilia'' was a Roman law which provided compensation to the owners of property injured by someone's fault, set in the 3rd century BC, in the Roman Republic. This law protected Roman citizens from some forms of theft, vandalism, and des ...
'' - literally ''loss wrongfully caused'' - with the wrongdoing in such instances generated by the defender's ''culpa'' (i.e., fault). In any instance in which a pursuer (A) has suffered loss at the hands of the wrongful conduct of the defender (B), B is under a legal obligation to make reparation. If B's wrongdoing were intentional in the circumstances, or so reckless that an 'intention' may be constructively inferred (on the basis that ''culpa lata dolo aequiparatur'' - 'gross fault is the same as intentional wrongdoing'), then it follows axiomatically that B will be liable to repair any damage done to A's property, person or economic interest: 'wherever a defender intentionally harms the pursuer - provided the interest harmed is regarded as reparable - the defender incurs delictual liability'. If the pursuer has suffered loss as the result of the defender's conduct, yet the defender did not intend to harm the pursuer, nor behave so recklessly that intent might be constructively inferred, the pursuer must demonstrate that the defender's conduct was negligent in order to win their case. Negligence can be established, by the pursuer, by demonstrating that the defender owed to them a 'duty of care' which they ultimately breached by failing to live up to the expected standard of care. If this can be shown, then the pursuer must also establish that the defender's failure to live up to the expected standard of care ultimately caused the loss (damnum) complained of.


Defences under Scots and Roman Dutch law of delict

There is a distinction between defences aimed at the wrongfulness element and defences which serve to exclude fault. Grounds of justification may be described as circumstances which occur typically or regularly in practice, and which indicate conclusively that interference with a person's legally-protected interests is reasonable and therefore lawful. They are practical examples of circumstances justifying a ''prima fade'' infringement of a recognised right or interest, according to the fundamental criterion of reasonableness. They are another expression of the legal convictions of the society. Consent to injury, or ''
Volenti non fit injuria ''Volenti non fit iniuria'' (or ''injuria'') (Latin: "to a willing person, injury is not done") is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of h ...
'', is a full defence; if successful, there is no delict. As a general defence, it can take two forms: # consent to a specific harmful act of the defendant; and # assumption of the risk of harm connected with the activity of the defendant. There are five requirements for the defence of consent: # capacity; # knowledge and appreciation of harm; and # consent, or free and voluntary assumption of risk. In addition, # the consent must not have been socially undesirable—not seduction, or murder for insurance purposes; and # the consent must not have been revoked. Necessity is conduct directed at an innocent person as a result of duress or compulsion, or a threat by a third party or an outside force. Private defence (or self-defence) is conduct directed at the person responsible for the duress or compulsion or threat. There is, therefore, an important distinction between the two. In cases of necessity and private defence, the question is this: Under which circumstances would the legal convictions of the community consider it reasonable to inflict harm to prevent it? The test is objective. It requires a balancing of the parties' and of society's interests. The role of the person against whom the defensive conduct is directed is an important factor in determining whether defence or necessity is being pled. An act of necessity is calculated to avert harm by inflicting it on an innocent person, whereas an act of defence is always directed at a wrongdoer. A person acts in "private defence," and therefore lawfully, when he uses force to ward off an unlawful attack against his or someone else's property or person. A person acts in "self-defence" when he defends his own body against unlawful attack by someone else. One therefore cannot invoke the justification of self-defence when acting in the interests of another person, but it is possible to invoke the justification of private defence when acting in one's own interests. Conduct will be justified as an act in private defence or self-defence if it is * lawful; * directed against a wrongdoer; and * for the protection of the actor's or a third party's interest, which is threatened or attacked by the wrongdoer. The violence used in defence must not exceed what is reasonably necessary to avert the threatened danger: * The attack must have constituted a real or imminent infringement of the defendant's rights. * The attack must have been unlawful. * The defensive conduct must have been directed at the attacker. * The defence must have been necessary to protect the threatened interests. * It must have been reasonable: An act of defence is justified only if it was reasonably necessary for the purpose of protecting the threatened or infringed interest. An act of necessity may be described as lawful conduct directed against an innocent person for the purpose of protecting an interest of the actor or of a third party (including the innocent person) against a dangerous situation, which may have arisen owing to the wrongful conduct of another or the behaviour of an animal, or through natural forces. Two types of emergency situations may be found: # those caused by humans; and # those caused by natural forces.


Other jurisdictions


China


History

Civil and criminal law were not clearly delineated in Ancient Chinese law as they are in modern legal systems. Therefore, while Tort Law was not a distinct area of law, concepts familiar to tort law were present in the criminal laws.Li (2014), p. 5 However, by the late
feudalism Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe between the 9th and 15th centuries. Broadly defined, it was a way of structu ...
period,
personal injury Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property. In common law jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit (t ...
and
property damage Property damage (or cf. criminal damage in England and Wales) is damage or destruction of real or tangible personal property, caused by negligence, willful destruction, or act of nature. It is similar to vandalism and arson (destroying prop ...
torts were mostly focused on compensation.Li (2014), p. 6 The earliest "tort case" known from Ancient China is from the
Zhou dynasty The Zhou dynasty ( ; Old Chinese ( B&S): *''tiw'') was a royal dynasty of China that followed the Shang dynasty. Having lasted 789 years, the Zhou dynasty was the longest dynastic regime in Chinese history. The military control of China by th ...
. During a famine one person robbed another's barn by sending his slave to steal the grain. He was sued and the court ordered double the original grain restored to the victim to compensate the damages.Li (2014), p. 4 The Qin Code made some changes to tort liabilities introducing the concept of subjective fault ( fault liability). In a case where one person borrows farm equipment, compensation would be required for damage to the equipment if the damage is caused by the condition of the equipment when it was borrowed. In addition to fault liability, some defences were developed. A person would not be
liable In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agen ...
if public property were damaged by fire or other natural forces outside the person's control. There was no liability for killing livestock, if the livestock was about to hurt someone. In contemporary China, however, there are four distinct legal systems in force, none of which are derived from classical Chinese law: Portuguese civil law in Macau, common law in Hong Kong, a German-style civil law system adopted by the Republic of China following Japan's model, and a primarily civil law system in the mainland.


Republic of China

In areas administered by the Republic of China, the legislative basis of tort law is the Civil Code of the Republic of China whose legal system was modelled after the Japanese Six Codes system, which itself was primarily based on the German pandectist approach to law. In general, article 184 provides that a person who "intentionally or negligently" damages another person's rights is required to compensate them for any resulting injury, and provides for
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
where such harm is caused by the violation of a statutory provision aimed at protecting members of the community from harm. Additionally, tort liability exists for the owner of a defective building or structure where such building or structure causes damage, for the driver of an automobile that causes injury, and for individual's responsible for business activities that posed a risk of harm to the plaintiff. Tort liability in the Republic of China also extends to the violation of certain non-pecuniary interests under article 195 which provides for reasonable compensation in the case of damage to the body, health, reputation, liberty, credit, privacy, or chastity of another, or to another's personality in a severe way.


Mainland China

In 2021, the mainland adopted the
Civil Code of the People's Republic of China The Civil Code of the People's Republic of China ( zh, s=中华人民共和国民法典, p=Zhōnghuá Rénmín Gònghéguó Mínfǎ Diǎn), or in short Minfadian ( zh, s=民法典, p=Mínfǎ Diǎn) is the first complete civil code in the People' ...
(CCPRC), Book Seven of which is titled "Tort Liability" and codifies a variety of torts, providing that an individual "who through his fault infringes upon another person’s civil-law rights and interests shall bear tort liability". Book Seven outlines seven distinct categories of torts: *
Product Liability Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has b ...

Chapter IV
* Liability for Motor Vehicle Traffic Accidents
Chapter V
* Liability for Medical Malpractice
Chapter VI
* Liability for Environmental Pollution and Ecological Damage
Chapter VII
comparable to
toxic torts A toxic tort claim is a specific type of personal injury lawsuit in which the plaintiff claims that exposure to a chemical or dangerous substance caused the plaintiff's injury or disease. Place of exposure People may be exposed to toxic chemi ...
in common law jurisdictions) * Liability for Ultra-hazardous Activities
Chapter VIII
essentially codifying the common law doctrine of the same name) * Liability for Damage Caused by Domesticated Animals
Chapter IX
* Liability for Damage Caused by Buildings and Objects
Chapter X
While Book Seven (titled "Tort Liability") of the CCPRC, which is influenced by a variety of common law and civil law jurisdictions, codifies the torts which exist under the law of Mainland China, Book One of the CCPRC provides a comprehensive list of remedies for torts in Article 179: :  (1) cessation of the infringement; :  (2) removal of the nuisance; :  (3) elimination of the danger; :  (4) restitution; :  (5) restoration; :  (6) repair, redoing or replacement; :  (7) continuance of performance; :  (8) compensation for losses; :  (9) payment of liquidated damages; :  (10) elimination of adverse effects and rehabilitation of reputation; and :  (11) extension of apologies. These remedies apply to all categories of torts outlined in Book Seven or by any other provision of law. To this end, Book Seven specifically provides that "where a tortious act endangers another person’s personal or property safety, the infringed person has the right to request the tortfeasor to bear tort liability such as cessation of the infringement, removal of the nuisance, or elimination of the danger". Book One additionally provides that
force majeure In contract law, (from Law French: 'overwhelming force', ) is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, suc ...
constitutes a valid defence for tort liability while Article 184 in that book is a Good Samaritan law eliminating liability under tort law for individuals acting to save or rescue a potential plaintiff. Article 1176 in Book Seven provides a partial defence where an injury is caused in the course of a sport in which the plaintiff was consensually participating.


France

Tort liability in France (''responabilité extracontractuelle'') is a distinct system which has developed over the course of history stemming from the Napoleonic Code;. which, together with the German Burgerliches Gesetzbuch, forms the basis for private law in the majority of civil law countries with civil codes. French tort law is based on the principle that all injuries and other wrongs give rise to a remedy, typically in the form of damages, regardless of any other moral or equitable considerations; nevertheless, there are limits on the types of injuries which give rise to a remedy as well as the extent to which damages may be claimed. French jurisprudence has established that, in order to attract a remedy, an injury should generally be certain and direct (prohibiting speculative damages or compensation for
pure economic loss Economic loss is a term of art which refers to financial loss and damage suffered by a person which is seen only on a balance sheet and not as physical injury to person or property. There is a fundamental distinction between pure economic loss an ...
) and affect a legitimate interest; however, judges do not recognise a hard and fast rule, meaning that great weight is given to the specific circumstances in each case with precedent serving to guide rather than control jurisprudence. The main principle in French tort law is that of fault, the principle that the individual who causes damage ought generally to be liable for it; however, following the
Industrial Revolution The Industrial Revolution was the transition to new manufacturing processes in Great Britain, continental Europe, and the United States, that occurred during the period from around 1760 to about 1820–1840. This transition included going f ...
,
vicarious liability Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, '' respondeat superior'', the responsibility of the superior for the acts of their subordinate or, in a broader sense, the re ...
and
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
have developed through both precedent and legislative action in response to the need to address damage caused by products, machines, and the actions of agents or employees. French tort law is primarily governed by articles to of the civil code which establish a number of distinct regimes for tort liability. Liability for one's own actions is governed by articles 1240 and 1241 while other provisions of the code provide for vicarious and other sui generis forms of liability. In addition, liability in specific cases (e.g.
product liability Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has b ...
and
defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
) have been provided for in separate statutes outside the code and in European Union directives.


Germany


Outline

German tort law is codified in Book 2 of the
Bürgerliches Gesetzbuch The ''Bürgerliches Gesetzbuch'' (, ), abbreviated BGB, is the civil code of Germany. In development since 1881, it became effective on 1 January 1900, and was considered a massive and groundbreaking project. The BGB served as a template in se ...
(BGB), which provides for
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
in circumstances in which there is no contractual relationship between the plaintiff and the defendant. German tort law protects plaintiffs against violations of: * Legal interests (german: Rechtsgut, link=yes, literally: "legal good"): A legal interest is a good or interest protected by the legal system. Legal interests protected by tort are in particular life, the body, health, freedom and property. The type and number of protected legal interests are not conclusively defined and, where multiple such interests are at odds, they must be weighed against each other (e.g. human dignity versus freedom of speech in the context of the tort of
defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
). * Absolute rights (german: Absolutes Recht, link=yes): Absolute rights provide a beneficiary with an exclusive, legally protected right to over a specific legal position (e.g.
property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
rights), which everyone must respect. * Protective laws (german: Schutzgesetz, link=yes): In essence, a protective law is a provision of a written law which the
Bundestag The Bundestag (, "Federal Diet") is the German federal parliament. It is the only federal representative body that is directly elected by the German people. It is comparable to the United States House of Representatives or the House of Comm ...
or a
Landtag A Landtag (State Diet) is generally the legislative assembly or parliament of a federated state or other subnational self-governing entity in German-speaking nations. It is usually a unicameral assembly exercising legislative competence in non ...
intended to protect individuals from some category of harm (e.g. a product liability or consumer protection law). There are three distinct categories of liability recognised under the BGB: liability for "culpable injustice", "injustice in rebuttable presumed liability", and strict liability arising from "endangerment". Liability for culpable injustice, the default position in German tort law, is where an individual directly violates another person's legal interest or absolute right either intentionally or negligently. Rebuttable presumed liability is the principle that an individual is vicariously liable where a legal interest or absolute right is violated by another person (e.g. an agent, child/other person in their custody), where such a violation is committed by an animal, or where such a violation takes place on the first individual's property. Strict liability for endangerment exists with regard to violations of protective laws (e.g. product liability, environmental laws, motor vehicle regulations) and in cases in which an individual is especially vulnerable due to the nature of a circumstance (e.g. medical or legal malpractice). The BGB makes specific provisions for several different categories of torts pertaining to damages available, including damages and injunctions to prevent the commission of a tortious act. These provisions are supplemented by specific legislation, particularly protective laws. With regard to product liability, protective laws implementing European Union directives provide for a system of strict liability similar to that adopted in many common law jurisdictions; however, German tort law does not recognise class action lawsuits or the notion of mass torts. German tort law additionally does not permit punitive damages.


Jurisprudence

In terms of tort liability, the BGB represents a school of legal jurisprudence – the pandectists – heavily shaped by 19th century
classical liberalism Classical liberalism is a political tradition and a branch of liberalism that advocates free market and laissez-faire economics; civil liberties under the rule of law with especial emphasis on individual autonomy, limited government, e ...
and, accordingly, places great emphasis on minimising impairment to individual freedom of action.''L'influence du droit allemand sur la responsabilité civile française''– Oliver Berg – Revue Trimestrielle de Droit civil, 2006, p.53 In this regard, it can be contrasted with the Napoleonic Code, which was authored a century earlier and placed greater emphasis on the protection of individuals from the actions of others. As the two codes form the basis for private law in a variety of jurisdictions across the world, with one or the other being substantially copied by most civil law jurisdictions on every continent, the differences underpinning the BGB and the Napoleonic Code represent a major schism in jurisprudence between civil law jurisdictions. Since 1900, both the judges and German legislators decisively rejected the idea of a general principle of civil liability commonly found in civil codes inspired by the Napoleonic Code as well as in those of
Japan Japan ( ja, 日本, or , and formally , ''Nihonkoku'') is an island country in East Asia. It is situated in the northwest Pacific Ocean, and is bordered on the west by the Sea of Japan, while extending from the Sea of Okhotsk in the n ...
and the
Republic of China Taiwan, officially the Republic of China (ROC), is a country in East Asia, at the junction of the East and South China Seas in the northwestern Pacific Ocean, with the People's Republic of China (PRC) to the northwest, Japan to the northeas ...
which are otherwise based primarily on the same pandectist school as the BGB and that of the
Philippines The Philippines (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no), * bik, Republika kan Filipinas * ceb, Republika sa Pilipinas * cbk, República de Filipinas * hil, Republ ...
. One distinguishing feature of German law is the extent to which liability depends not just on the damage caused but on the action of the purported tortfeasor. Sometimes it is enough to prove negligence, while in other cases a more serious fault is required. Thus, anyone who unlawfully interferes, intentionally or through recklessness, with the life, body, health, freedom or property of others is liable to others to repair the resulting damage. On the other hand, less protection is granted in the event of damage to purely intangible interests, nicht-gegenständliche Interessen, that is to say when the victim only suffers purely economic or moral damage. Such is the case of a pecuniary loss caused by erroneous information or vexatious remarks. Apart from a rather marginal hypothesis provided for by article § 823 paragraph 2(9), the recourse will then suppose an intentional fault. The protection thus granted has proven to be incomplete. Consequently, over the course of the 20th century, case law has extended liability for recklessness to other cases, in particular by admitting that § 823 paragraph 1 BGB aims to protect a "general right to personality" and a "right to the company” or by recognising, alongside tort liability, the theory of
culpa in contrahendo ''Culpa in contrahendo'' is a Latin expression meaning "fault in conclusion of a contract". It is an important concept in contract law for many civil law countries, which recognize a clear duty to negotiate with care, and not to lead a negotiating ...
. Although Boris Starck makes no express reference to it, there are serious reasons to think that this right strongly inspired him in his elaboration of the theory of the guarantee. First, it takes up the idea of considering the event giving rise to the right to compensation, starting from the nature of the interest affected. Moreover, there is an astonishing resemblance between the respective formulations: § 823 paragraph 1 BGB is supposed to protect the integrity of property and persons by granting protection "to life, body, health, freedom, to property”. Starck, for his part, claims “a right to life, to bodily integrity and to the material integrity of the objects belonging to us”. Finally, on both sides, it is with the same arguments, such as the need to protect the freedom to act, that a less intense protection of purely economic and moral interests is justified. Nevertheless, Boris Starck departs from the German model by raising the protection of physical integrity by a notch, believing that the only breach here generates a right to compensation.


Israel

Israeli tort law is codified in the Tort Ordinance, originally passed under British rule, and is largely based on common law principles with influences from civil law jurisdictions. The Jewish law of rabbinic damages in Israel is another example of tort, although the Tort Ordinance is far more relevant in secular life, having been enacted by
British Mandate of Palestine British Mandate of Palestine or Palestine Mandate most often refers to: * Mandate for Palestine: a League of Nations mandate under which the British controlled an area which included Mandatory Palestine and the Emirate of Transjordan. * Mandatory P ...
authorities in 1944 and taking effect in 1947. The Tort Ordinance additionally provides that any civil court may grant either or both compensation or an injunction as a remedy for a tort and codifies common law rules regarding liability and defences to tort claims. Chapter Three of the ordinance provides a list of torts recognised under Israeli law, including: *
Assault An assault is the act of committing 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 and a tort and, therefore, may result in cr ...
(article one): Assault is defined as the "intentional application of any kind of force" either without their consent or by obtaining consent through fraud. It also includes "any attempt" to do so if the plaintiff reasonably feared injury. The act provides that self defence, the use of reasonable force to protect property or executing a lawful warrant constitute valid defences to the tort of assault. Additional defences apply where both the plaintiff and the defendant are members of the
Israeli Defence Forces The Israel Defense Forces (IDF; he, צְבָא הַהֲגָנָה לְיִשְׂרָאֵל , ), alternatively referred to by the Hebrew-language acronym (), is the national military of the State of Israel. It consists of three service branch ...
or where the plaintiff suffered from a mental illness. * False imprisonment (article two): False imprisonment is defined as "the deprivation of the liberty of any person, unlawfully and absolutely, for any period of time by physical means or by a show of authority." *
Trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery, woundi ...
to moveable and immovable property (article three): Any unlawful interference with the plaintiff's immovable or moveable property *
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 law known as ''negligence'' involves harm caused by failing to act as ...
(article four): The act provides that an individual is liable where they violate a duty of care owed to members of the general public. * "Damage caused by dog" (article four A),
nuisance Nuisance (from archaic ''nocence'', through Fr. ''noisance'', ''nuisance'', from Lat. ''nocere'', "to hurt") is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") ...
(article five): The owner of a dog is vicariously liable for tortious conduct on the part of the dog. * Misappropriation of property (article six): This tort provides a remedy for the unlawful detention of property and for
conversion Conversion or convert may refer to: Arts, entertainment, and media * "Conversion" (''Doctor Who'' audio), an episode of the audio drama ''Cyberman'' * "Conversion" (''Stargate Atlantis''), an episode of the television series * "The Conversion" ...
. * Deceit (article seven): This tort provides a remedy for
fraud In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compen ...
and injurious falsities * Malicious prosecution (article eight) * Causing
breach of contract Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other part ...
(article nine), * Breach of statutory duty (article ten).


Japan

Like the French Civil Code, the Japanese Civil Code only has a single provision on tort liability. Article 709 of the Civil Code states: "A person who has intentionally or negligently infringed any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence."Tsunematsu, Jun. (2010). Tort Liability in Japan: : How is it understood by Japanese legal professionals?
PDF
/ref> Tort liability in Japan therefore exists when three conditions are met: negligence or intentionality on the part of the tortfeasor, infringement of some legally recognised right, and a causal link between the tortfeasor's action and the infringement in question. As this leaves room for a broad and potentially unrestricted scope of tort liability, Japanese tort law gradually developed based on case law, including cases on pollution. Statutes outside the Civil Code also regulate specific types of torts, such as the Law on the Compensation of Losses arising from Car Accidents enacted in 1955, the 1973 Law on the Remedies of Harm Caused to Human Health by Pollution, and the 1994 Law on Product Liability. The standard of proof in Japanese tort litigation is that of "proof of a high degree of probability", a higher standard than the balance of probabilities utilised for tort liability in common law jurisdictions but lower than the reasonable doubt standard used in most legal systems for criminal trials, which the Japanese Supreme Court described in the leading case Miura v. Japan (a case on liability for medical malpractice): Contemporary Japanese product liability law forms a distinct area of tort liability in which litigation may proceed under Article 709 of the Civil Code or the Product Liability Act of 1994. Under the Product Liability Act, which defines "products" as including any "movable item that is manufactured or processed"; manufacturers bear
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
where a plaintiff proves the existence of: * A defect in the product, * Damage to life, body, or property, and * A causal link between the defect and damage in question. Under Japanese tort law, plaintiffs may seek compensation for both economic and non-economic damages, and there is no statutory cap on damages; however, punitive damages are forbidden on public policy grounds. Japanese courts regard the compensation of plaintiffs as the paramount purpose of damages under tort law, regarding punishment and deterrence as the exclusive domain of criminal law.Daisuke Mori & Shuichi Takahashi & Yasuhiro Ikeda, 2017. "Compensation, punishment, and deterrence: a survey on the purpose of tort damages in the case of a defective car accident in Japan," Asia-Pacific Journal of Regional Science, Springer, vol. 1(2), pages 589-624, October. DOI: 10.1007/s41685-017-0059-8 Punitive damages awarded against tortfeasors by arbitral tribunals or foreign courts are unenforceable in Japan. Additionally, Japanese civil procedure does not allow for class actions and does not recognise mass tort liability. As a result of the structure of Japan's tort system, the country experiences a significantly lower litigation rate than other jurisdictions. In a 1990 article,Takao Tanase, "The Management of Disputes: Automobile Accident Compensation in Japan", ''Law and Society Review'' 24 (1990), 651. Takao Tanase posited that the structure of Japan's civil court system and its tort jurisprudence account for its low litigation rate, rather than any fundamental difference in culture between Japan and other countries. Indeed; present literature finds that, although Japanese jurists take a narrow view of tort law as solely serving to compensate plaintiffs for proven damages, the general Japanese public views punishment and deterrence as being just as desirable in civil litigation as the public in other countries. In Japan in 1986, fewer than 1% of automobile accidents involving death or an injury resulted in litigation, compared to 21.5% in the United States, a difference Tanase argues can be attributed to the availability of non-litigious methods of assessing fault, advising victims, determining compensation, and ensuring payment. Non-litigious dispute resolution mechanisms, mediation services, consultation centres operated by governments, the bar association, and insurance companies. The Japanese judiciary also works hard at developing clear, detailed rules that guarantee virtually automatic, predictable, moderate compensation for most accident victims. This contrasts with the tort system in common law jurisdictions, where the legal rules concerning both liability and
general damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
(i.e. non-economic loss) are stated in general terms, leaving a great deal to the judgment of constantly rotating lay juries—which in turn makes courtroom outcomes variable and difficult to predict. The result was a system that is vastly more efficient and reliable in delivering compensation than in common law jurisdictions, albeit without punitive or exemplary damages. Tanase estimated that legal fees comprised only 2% of the total compensation paid to injured persons. In the United States in the late 1980s, according to two big studies of motor vehicle accident tort claims (not just lawsuits), payments to lawyers equaled 47% of the total personal injury benefits paid by insurers. This expense drives up the cost of insurance to the point that huge numbers of drivers are uninsured or under-insured, which means that victims of their negligent driving will get little or nothing from the tort system.


North Korea

North Korea's approach to tort liability is relatively unique in the 21st century since, as a result of its
Juche ''Juche'' ( ; ), officially the ''Juche'' idea (), is the state ideology of North Korea and the official ideology of the Workers' Party of Korea. North Korean sources attribute its conceptualization to Kim Il-sung, the country's founder and f ...
ideology and centralised planned economy, its legal system puts little emphasis on civil liability between private citizens; instead, it views correcting damages caused by tortious acts as the prerogative of the state through its economic intervention and criminal penalties. Nevertheless, the Law on the Compensation of Damages adopted on 22 August 2001 provides for tort liability, including
vicarious liability Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, '' respondeat superior'', the responsibility of the superior for the acts of their subordinate or, in a broader sense, the re ...
on the part of principals for the actions of agents, employers for the actions of employees, parents or guardians for the actions of children, and owners for the actions of pets or other animals under their control. North Korean tort law also recognises capacity as an important factor in determining whether or not someone may be held liable for their own actions.


Philippines

The Philippines is a mixed law jurisdiction, shaped primarily by Spanish civil law and American common law as codified in the Philippine Civil Code. For the most part, the equivalent of tort law (insofar as it concerns negligence and product liability) in the Philippines is the law of quasi-delict. Article 2176 of the civil code provides that, in the absence of a contractual or quasi-contractual relationship, a person who "by act or omission causes damage to another" by way of fault or negligence is "obliged to pay for the damage done". Article 1174 (which is made applicable by article 2178) provides that an individual is generally exempt from liability if the events giving rise to the damage were unforeseeable or inevitable. The Philippine law of quasi-delict is largely a codification of common law principles and doctrines. For instance, the common law doctrine of comparative negligence is codified in article 2179, providing for compensation to be reduced in proportion with the plaintiff's own fault for the damage they incurred. Similarly, the duty of care established in Donoghue v Stevenson is codified by article 2187 with regard to "manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods", and is extended by article 2189 to provincial and local governments responsible for defective public amenities. Similarly, article 2190 establishes liability for the owners of defective buildings or structures that cause damage. Additionally, case law in the Philippines recognises the common law doctrine of
res ipsa loquitur ''Res ipsa loquitur'' (Latin: ''"the thing speaks for itself"'') is a doctrine in the common law and Roman-Dutch law jurisdictions under which a court can infer negligence from the very nature of an accident or injury in the absence of direct evid ...
. Outside the law of quasi-delicts, the civil code also codifies other provisions of tort law in Chapter 2 of the Preliminary Title under the heading "Human Relations". This chapter provides that "every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith" and that "every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same". While negligence and product liability are primarily covered by the law of quasi-delicts, this chapter covers intentional wrongs in article 21, which provides that "any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage". This chapter makes several other provisions in the realm of tortious liability, including: liability for
defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
(article 33); violations of another person's privacy, causing humiliation on account of religion or economic status, causing another person to be alienated from their friends (article 26); benefitting from (without causing) damage to another person's property (article 23). Damages under Philippine law are provided for in the Philippine Civil Code, which establishes harmonised rules for damages arising under any kind of obligation.In addition to pecuniary or economic damages, the code provides for two categories of non-economic damages with regard to quasi-delicts. Firstly, moral damages (i.e. damages for "physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury" resulting from a quasi-delict) may be awarded under article 2217. Secondly, exemplary damages may be awarded under article 2231 if there was "gross negligence" on the part of the defendant. In special cases, a court may choose to award nominal damages under article 2221 if it finds that, although it is unnecessary to compensate the plaintiff, it is nevertheless desirable to "vindicate" or "recognise" the violation of their right. Additionally, where a court cannot determine the value of damage incurred with sufficient certainty to award economic damages, it may instead award "temperate or moderate damages" under article 2224, which are higher than purely nominal damages but less than compensatory economic damages.


Québec

Private law in the Canadian province of Québec at the time of its annexation by the British Empire was originally derived from pre-Napoleonic French law but was eventually codified in the Civil Code of Lower Canada and later the present Code Civil du Québec (CCQ). While tort law in Canada's other provinces follows common law jurisprudence under which distinct nominate torts are recognised by precedent or statute, CCQ provides for a general and open-ended concept of "civil liability" or ''la responsabilité civile'' in article 1457: The CCQ provides for and defines the scope of civil liability for damages caused by inanimate objects. Article 1465 makes the general provision that the custodian of a thing or object (''bien'') is liable for any damage caused by it, while article 1466 provides that the owner of an animal is liable for damage or injury caused by it even if it had escaped from their custody at the time of the incident. Similarly, article 1467 imposes liability for damages caused by the ruin of an immovable (i.e. a building or other fixed structure) upon its owner even if construction defects are the ultimate cause of the ruin. Strict liability is imposed upon the manufacturers of moveable things (i.e.
product liability Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has b ...
) by article 1468 for injuries caused by safety defects. An individual is exempt from civil liability in cases of
force majeure In contract law, (from Law French: 'overwhelming force', ) is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, suc ...
(article 1470), harm caused in the process of assisting or rescuing another (article 1471), and in certain other cases prescribed by law. In general, there are four conditions necessary for a finding of civil liability under the CCQ: * Imputability: The capacity of a tortfeasor to "discern right from wrong", and to understand the consequences of their actions. * Fault: The failure of a tortfeasor to act as "a normally prudent and reasonable person" would have in similar circumstances. * Damage: Harm or injury suffered by the plaintiff * Causation: A causal link between the fault of the tortfeasor and the damage incurred by the plaintiff.


Thailand

Thai tort law, as with contemporary Thai law in general, is a codified admixture of principles derived from common law and civil law systems.Triamanuruck, Ngamnet; Phongpala, Sansanee; and Chaiyasuta, Sirikanang, "Overview of Legal Systems in the Asia-Pacific Region: Thailand" (2004). Overview of Legal Systems in the Asia-Pacific Region (2004). Paper 4
PDF
/ref> Title V of the Civil and Commercial Code of Thailand (CCT) establishes the principles of Thai tort law, with section 420 enshrining the basic doctrine that:Civil and Commercial Code of Thailand, Title V: Torts, Sections 420-437
/ref> This is analogous to Article 709 of the Japanese Civil Code which establishes three criteria for tort liability: negligence or intentionality on the part of the tortfeasor, infringement of some legally recognised right and a causal link between the tortfeasor's action and the infringement in question. The CCT comprehensively outlines rules for tort liability and the burden of proof. In general, section 429 provides the default rule that everyone is liable for their own tortious acts and that the guardians of a child or other person lacking capacity are jointly liable. While the burden of proof under Thai tort law is on the plaintiff by default, section 422 of the CCT provides that an individual who infringes "a statutory provision intended for the protection of others" is presumed to be liable. Sections 425 through 327 provide for vicarious liability in employer-employee and principal-agent relationships while providing that an employer or principal found vicariously liable may seek compensation from the employee or agent, respectively. Similarly, section 433 provides that the owner or caretaker of an animal is liable for any tortious conduct it may commit, with the caveat that the owner or caretaker may seek compensation for such liability from anyone who "wrongfully excited or provoked the animal" or from "the owner of another animal" which did so. Sections 434 to 436 provide special rules for liability for the owners and possessors/occupiers (e.g. tenants/lessees) of defective buildings and structures, whereby: 1) the possessor is liable for damage caused by defective construction or poor maintenance except if they exercised proper care to prevent the damage, 2) if the possessor exercised proper care, the owner is liable, 3) the occupier of a building is liable for damage caused by items that fall from the building, and 4) an individual who is at risk of damage or injury from such a building may require its owner or possessor to take preventive action. Certain provisions of the CCT also provide for strict liability with regard to specific categories of tortious conduct; for example, section 437 provides for strict liability for an individual in charge of a vehicle or conveyance which causes injury and for individuals possessing items which are "dangerous by nature" or "on account of their mechanical action", except where the individual demonstrates that the injury resulted from
force majeure In contract law, (from Law French: 'overwhelming force', ) is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, suc ...
. Additionally, the CCT provides that self-defence, the aversion of a common danger, the use of reasonable and necessary force, and (where the thing or person damaged was the source of such danger) the aversion of an individual danger are defences against tort claims. The rules regarding compensation under Thai tort law are prescribed by the CCT. In general, section 438 provides that courts may award such compensation as appears necessary with regard to "the circumstances and gravity of the act"; and that, in addition to damages, "compensation may include restitution" of any property of which the plaintiff has been deprived or which has decreased in value as a result of the tortious act.Civil and Commercial Code of Thailand, Title V: Torts, Sections 438-448
/ref> Per section 439, an individual who defaults on an obligation to return property they had wrongly deprived another individual of is liable to compensate the other individual for "the accidental destruction" or "accidental impossibility of returning" the property in question, except where such destruction or impossibility would have occurred regardless of the wrongful deprivation. Section 440 provides that compensation may additionally include interest for lost time. Where the tortious act contributed to an individual's death, compensation must include funerary expenses; and, where the act resulted in damage to an individual's health or body, compensation must include reimbursement of medical expenses and lost wages, and may additionally include non-pecuniary damages. Where the tortious act involves harm to an individual's reputation, the court may order "proper measures to be taken" to restore the individual's reputation either together with or in lieu of damages.


European Union

The legal framework of
the European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been d ...
consists of the
treaties A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...
,
regulations Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...
, directives and
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...
. Specifically in the area of tort law, a number of rules can be found in tort law directives.Peter-Christian Muller-Graf, 'EC Directives as a Means of Private Law Unification' in Hartkamp et al. (eds), Towards a European Civil Code (New York: Aspen Publishers, 2004). Examples of directives include the
Product Liability Directive The Product Liability Directive''85/374/EECis a directive of the Council of the European Communities (now the European Union) which created a regime of strict liability for defective products applicable in all member states of the European Union, ...
and the Directive on Unfair Commercial Practices. A directives can be either a
maximum harmonisation Maximum harmonisation is a term used in EU law. If a piece of law (usually a directive but occasionally also a regulation) is described as maximum harmonisation, national law may not exceed the terms of the legislation. In practice, that prohibi ...
directives, which means member states are not allowed to deviate from it, or a
minimum harmonisation Minimum harmonisation is a term used in European Union law. Minimum harmonisation describes a piece of law (usually a directive but occasionally a regulation) that sets a threshold national legislation must meet. EU Member State national legislat ...
directive, which only provide a general framework. Article 288 of the TFEU, however, concedes that a directive 'shall be binding as to the result to be achieved, upon each member State to which it is addressed, but shall leave to national authorities the choice of form and methods'. Liability can also be based on the violation of community provisions. Article 288 of the TFEU explicitly regulates the liability of Community Institutions for damage caused by the breach of Union Law. This article does not give precise liability rules but refers to the general principles common to the laws of Member States. It does not mean that 'the Community judicature must search for a solution favoured by a majority of Member States …. It simply means that the Community judicature must look to the national systems for inspiration in devising a regime of non-contractual liability adapted to the specific circumstances of the Community.' The development of a general principle of liability for breach of Union Law is also in the
Francovich case ''Francovich v Italy'' (1991) C-6/90 was a decision of the European Court of Justice which established that European Union Member States could be liable to pay compensation to individuals who suffered a loss by reason of the Member State's fail ...
law of the ECJ. In this 1991 decision, the ECJ acknowledged liability of the Member States towards individuals for violation of Union law as being inherent in the system of the Treaty and being necessary for the effectiveness of Community of law. On the basis of the general principles to which Article 288 refers, the ECJ developed three requirements for liability: #The
rule of law The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannic ...
infringed must be intended to confer rights on individuals #The breach must be sufficiently serious #There must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties. The fulfilment of these requirements is sufficient for a right to compensation, which is directly based in Union Law. Within the European Union and neighbouring countries, the
European Group on Tort Law The European Group on Tort Law, sometimes called the Spier/Koziol group,Hondius et al, ''Towards a European Civil Code'' (2004), p. 14. is an academic group devoted to revising tort principles that are supposed to be common to Europe. In 1992 Jaa ...
promotes the harmonisation of tort law within the region. The group meets regularly to discuss fundamental issues of tort law liability as well as recent developments and the future directions of the law of tort. The Group has founded the
European Centre of Tort and Insurance Law Since November 2000 the European Centre of Tort and Insurance Law (ECTIL), based in Vienna, has been an association whose purpose is *to conduct legal and comparative research in the field of national, international and common European tort and ...
in Vienna. The Group has drafted a collection of Principles of European Tort Law similar to the
Principles of European Contract Law The ''Principles of European Contract Law'' (PECL) is a set of model rules drawn up by leading contract law academics in Europe. It attempts to elucidate basic rules of contract law and more generally the law of obligations which most legal syste ...
drafted by the European Contract Law Commission. The ''Principles of European Tort Law'' are a compilation of guidelines by the European Group on Tort Law aiming at the harmonisation of European
tort law A tort is a civil wrong 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 punishab ...
. They are not intended to serve as a model code, even though their wording may resemble statutory texts. At least with respect to form and structure, they resemble an American '' Restatement of the Law''. The ''Principles of European Tort Law'' are intended to serve as a common framework for the further development of national tort laws and also of singular European legislation, which could avoid a further drifting-apart of piecemeal rule-making both on a national and on the European level.


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. In common law jurisdictions, the traditional approach to determine which jurisdiction's tort law is applicable is the ''proper law'' test. When the jurisdiction is in dispute, one or more
state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...
laws will be relevant to the decision-making process. If the laws are the same, this will cause no problems, but if there are substantive differences, the choice of which law to apply will produce a different
judgment Judgement (or US spelling judgment) is also known as ''adjudication'', which means the evaluation of evidence to make a decision. Judgement is also the ability to make considered decisions. The term has at least five distinct uses. Aristotle s ...
. Each state, therefore, produces a set of rules to guide the choice of law, and one of the most significant rules is that the law to be applied in any given situation will be the ''proper law''. This is the law which seems to have the closest and most real connection to the facts of the case, and so has the best claim to be applied. The general rule is that the ''proper law'' is the primary system of law that governs most aspects of the factual situation giving rise to the dispute. This does not imply that all the aspects of the factual circumstances are necessarily governed by the same system of law, but there is a strong presumption that this will be the case (see
characterisation Characterization or characterisation is the representation of persons (or other beings or creatures) in narrative and dramatic works. The term character development is sometimes used as a synonym. This representation may include direct method ...
). Traditionally, common law jurisdictions such as England required "double actionability" for torts, effectively requiring the conduct to be considered tortious both in England and in the jurisdiction whose law is to apply under the proper law rule. Over time, the proper law test has been refined or replaced in many common law jurisdictions either with reference to all instances of conflict of laws or specifically in the case of tort law. In English law, with the exception of
defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
which continues to apply the ''proper law'' test, s10
Private International Law (Miscellaneous Provisions) Act 1995 The Private International Law (Miscellaneous Provisions) Act 1995 (c 42) is an Act of the Parliament of the United Kingdom. The Act is made up of several parts. The three principal parts regulate: * Interest on judgment debts and arbitral aw ...
abolishes the " double actionability" test, and s11 applies the ''lex loci delicti'' rule subject to an exception under s12 derived from ''
Boys v Chaplin ''Boys v Chaplin'' 971AC 356 is a leading conflict of laws case decided by the House of Lords. Facts The plaintiff, a passenger on a motorcycle, was injured through the negligence of the defendant whose car had hit the motorcycle. The plaintif ...
''
971 Year 971 ( CMLXXI) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Battle of Dorostolon: A Byzantine expeditionary army (possibly 30–40,000 men ...
AC 356 and ''
Red Sea Insurance Co Ltd v Bouygues SA ''Red Sea Insurance Co Ltd v Bouygues SA'' 9951 AC 190 is a judicial decision of the Privy Council relating to choice of law in tort. The case was an appeal from the decision of the Court of Appeal of Hong Kong, but as the case was decided in ...
'' 9951 AC 190. Thus, it is no longer necessary for the case to be based on a tort actionable in England. The English courts must apply wider international tests and respect any remedies available under the "Applicable Law" or ''lex causae'' including any rules on who may claim (e.g. whether a personal representative may claim for a fatal accident) and who the relevant defendant may be (i.e. the English court would have to apply the applicable law's rules on
vicarious liability Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, '' respondeat superior'', the responsibility of the superior for the acts of their subordinate or, in a broader sense, the re ...
or the identity of an "occupier" of land). The first step is for the court to decide where the tort occurred, which may be complicated if relevant events took place in more than one state. s11(2) distinguishes between: *actions for personal injuries: it is the law of the place where the individual sustained the injury; *damage to property: it is the law of the place where the property was damaged; *in any other case, it is the law of the place in which the most significant element or elements occurred. In exceptional circumstances, the ''lex loci delicti'' rule is displaced in favour of another law, if the "factors relating to the parties" or "any of the events which constitute the tort" show that this other law will be ''substantially'' more appropriate. Within the European Union, there have been efforts to harmonise conflict of tort laws rules between member states. Under Article 3 of the proposed '' Rome II Regulation'' on the ''Law Applicable to Non-Contractual Obligations'' (22 July 2003), there would be a general presumption that the ''lex loci delicti'' will apply subject to either: an exception in Paragraph 2 for the application of the law to any common habitual residence between the parties, or an exception in Paragraph 3 for cases in which "the non-contractual obligation is manifestly more closely connected with another country. . ." the so-called ''proximity criterion''. In effect, where other specific rules of the regulation are not applied, these general rules replicate the effect of the English rules outlined above. In
product liability Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has b ...
cases, Article 4 selects the law of the injured party's habitual residence if the product was marketed there with the consent of the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisd ...
. The rationale is that if a defendant knows of, and is benefiting from, sales in 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 in favor of t ...
's state, the choice of that state's law is reasonable. Article 6 specifies the ''lex fori'' for actions arising out of breach of
privacy Privacy (, ) is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively. The domain of privacy partially overlaps with security, which can include the concepts of ...
or
defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
, a rule that may increase the risk of forum shopping. Whether the plaintiff has any right of reply in a defamation case will be determined under the law of the state where the broadcaster or publisher is established. In cases where contract and tort issues overlap, Article 9 states that the same law should govern both sets of issues, thus applying contractual
choice of law Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states (as in t ...
clauses to related tort litigation. In the United States, where each state constitutes a distinct jurisdiction for the purposes of tort law, different jurisdictions take different approaches to conflict of laws, and rules regarding conflict of tort laws apply equally to conflicts between the tort laws of two American states and conflicts between an American state and a foreign jurisdiction. Until the 20th century, traditional choice of law rules were based on the principle that legal rights vest automatically at legally significant and ascertainable times and places. For example, a dispute regarding property would be decided by the law of the place the property was located. Disputes in tort would be decided by the place where the injury occurred. During the first half of the 20th century, the traditional conflict of laws approach came under criticism from some members of the American legal community who saw it as rigid and arbitrary; the traditional method sometimes forced the application of the laws of a state with no connection to either party, except that a tort or contract claim arose between the parties in that state. This period of intellectual ferment (which coincided with the rise of the
legal realism Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world. Legal realists ...
movement) introduced a number of innovative approaches to American choice of laws jurisprudence: *
Renvoi In conflict of laws, renvoi (from the French, meaning "send back" or "to return unopened") is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state. The procedure for con ...
: Under this approach, courts look for a provision in the law of the choice of the law state that permits the court to use the
lex fori In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the '' lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition ( ...
, i.e. law of the forum state. *Significant contacts test: This test evaluates the contacts between the states and each party to the case, and determines which state has the most significant contacts with the litigation as a whole. *Seat of the relationship test: This test specifically examines the relationship between the parties to the lawsuit, and uses the law of the state in which the relationship between the parties was most significant. *Balance of interests test: This test examines the interests of the states themselves, and the reasons for which the laws in question were passed. It is the brainchild of
University of Chicago The University of Chicago (UChicago, Chicago, U of C, or UChi) is a private research university in Chicago, Illinois. Its main campus is located in Chicago's Hyde Park neighborhood. The University of Chicago is consistently ranked among the b ...
law professor Brainerd Currie, who outlined the doctrine in a series of articles from the 1950s and 60s. Under this form of analysis, the court must determine whether any conflict between the laws of the states is a true conflict, a false conflict, or an unprovided-for case. A true conflict occurs when one state offers a protection to a particular party that another state does not, and the court of the state that offers no such protection is asked to apply the law of the state offering the protection. In such a case, if the interests are balanced, the law of the forum will prevail. A false or apparent conflict occurs when the state offering the protection has no actual interest in the endorsement of that protection against the particular parties to the case. In this case, since neither party is from the forum state, it has no interest in the application of the law to these persons. An unprovided-for case is one in which each party is seeking to apply the law of the ''other'' state. In such a case, the law of the forum will prevail. *Comparative impairment test: This test asks which state's policies would suffer more if their law was not applied. This is similar to interest analysis, in that the interests of the state are taken into account - however, this test does not look to see which state benefits more from the application of its laws, but rather for situations in which the other state's interests will actually be harmed by the application of the laws of the forum state. *Better rule test: The better rule test presupposes that, between the laws presented by the two or more states in which the action arose, there is one set of laws that is empirically better, and which is therefore more meritorious of application by the forum court. Use of the "better rule" test, like renvoi, is frowned upon because it appears to be little more than a gimmick to allow a court to apply the law of its own state.


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: compensatory, aggravated, and punitive. British scholar
Glanville Williams Glanville Llewelyn Williams (15 February 1911 – 10 April 1997) was a Welsh legal scholar who was the Rouse Ball Professor of English Law at the University of Cambridge from 1968 to 1978 and the Quain Professor of Jurisprudence at University ...
notes four possible bases on which different torts rested: appeasement, justice, deterrence, and compensation. William M. Landes, Richard A. Posner, and Steven Shavell have initiated a line of research in the
law and economics Law and economics, or economic analysis of law, is the application of microeconomic theory to the analysis of law, which emerged primarily from scholars of the Chicago school of economics. Economic concepts are used to explain the effects of law ...
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 Game theory is the study of mathematical models of strategic interactions among rational agents. Myerson, Roger B. (1991). ''Game Theory: Analysis of Conflict,'' Harvard University Press, p.&nbs1 Chapter-preview links, ppvii–xi It has appli ...
. Law and economic scholars characterise law in terms of incentives and deterrence, and identified the aim of tort as being the efficient distribution of
risk In simple terms, risk is the possibility of something bad happening. Risk involves uncertainty about the effects/implications of an activity with respect to something that humans value (such as health, well-being, wealth, property or the environm ...
.
Ronald Coase Ronald Harry Coase (; 29 December 1910 – 2 September 2013) was a British economist and author. Coase received a bachelor of commerce degree (1932) and a PhD from the London School of Economics, where he was a member of the faculty until 1951. ...
, a principal proponent, argued in ''
The Problem of Social Cost "The Problem of Social Cost" (1960) by Ronald Coase, then a faculty member at the University of Virginia, is an article dealing with the economic problem of externalities. It draws from a number of English legal cases and statutes to illustrate Co ...
'' (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 Patrick Selim Atiyah, (5 March 1931 – 30 March 2018) was an English lawyer and academic. He was best known for his work as a common lawyer, particularly in the law of contract and for advocating reformation or abolition of the law of tort. He ...
has called the situation a "damages lottery". Consequently, in New Zealand, the government in the 1960s established a no-fault system of state compensation for
accidents An accident is an unintended, normally unwanted event that was not directly caused by humans. The term ''accident'' implies that nobody should be blamed, but the event may have been caused by unrecognized or unaddressed risks. Most researcher ...
. In the 1970s,
Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
and the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and ...
drew up proposals for similar no-fault schemes but they were later abandoned. A wide variety of tort reforms have been implemented or proposed in different jurisdictions, each attempting to address a particular deficiency perceived in the system of tort law. Generally, these can be broken down into two categories: reforms limiting
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
recoverable by a plaintiff and procedural reforms limiting the ability of plaintiffs to file lawsuits. A large portion of tort reforms seek to limit the damages a plaintiff can be awarded. The rationale underlying these reforms is that, by limiting the profitability of tort lawsuits to plaintiffs, they will reduce the incentive to file frivolous lawsuits. There are several varieties of reforms to the system of damages: *
Non-economic damages caps Non-economic damages caps are tort reforms to limit (''i.e.'', "cap") damages in lawsuits for subjective, non-pecuniary harms such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, loss of consortium, and ...
place limits on noneconomic damages and collecting lawsuit claim data from malpractice insurance companies and courts in order to assess any connection between malpractice settlements and premium rates. Such caps can be general or limited to a particular category of cases. *
Punitive damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
caps limit the amount of
punitive damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
awardable to a plaintiff. In most civil law jurisdictions, punitive damages are unavailable and are considered contrary to
public policy Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public ...
since the civil justice system in many countries does not accord defendants the procedural protections present in the criminal justice system thus penalising an individual without allowing them the ordinary procedural protections that are present in a criminal trial. The rationale for restricting punitive damages is that such damages encourage a vindictive, revenge-seeking state of mind in the claimant and society more generally. In the UK, '' Rookes v Barnard'' limited the situations in which punitive damages can be won in tort actions to where they are expressly authorised by a statute, where a defendant's action is calculated to make a profit, or where an official of the state has acted arbitrarily, oppressively or unconstitutionally. In the United States, though rarely awarded in tort cases, punitive damages are available and are sometimes quite staggering when awarded. *Limits on damages for
pain and suffering Pain and suffering is the legal term for the physical and emotional stress caused from an injury (see also pain and suffering). Some damages that might come under this category would be: aches, temporary and permanent limitations on activity, p ...
are another category of tort reform. While tort compensation easily applies to property damage, where the replacement value is a market price (plus interest), but it is difficult to quantify the injuries to a person's body and mind. There is no market for severed legs or sanity of mind, and so there is no price that a court can readily apply in compensation for the wrong. Some courts have developed scales of damages awards, and benchmarks for compensation, which relate to the severity of the injury. For instance, in the United Kingdom, the loss of a thumb is compensated at £18,000, for an arm £72,000, for two arms £150,000, and so on, but while a scale may be consistent, the award itself is arbitrary.
Patrick Atiyah Patrick Selim Atiyah, (5 March 1931 – 30 March 2018) was an English lawyer and academic. He was best known for his work as a common lawyer, particularly in the law of contract and for advocating reformation or abolition of the law of tort. ...
has written that one could halve, double, or triple all the awards and it would still make just as much sense as it does now. *Another reform to compensation, in jurisdictions where it is not already the norm, is to implement the
English rule In the field of law and economics, the English rule is a rule controlling assessment of lawyers' fees arising out of litigation. The English rule provides that the party that loses in court pays the other party's legal costs. The English rule contr ...
whereby the losing party to a case covers the victorious party's legal costs. In
Commonwealth A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...
countries as well as certain American states, the losing party must pay for the court costs of the winning party. The English rule Is also a prevailing norm in European civil law jurisdictions. For example, after authors Michael Baigent and Richard Leigh lost their plagiarism litigation over ''
The Da Vinci Code ''The Da Vinci Code'' is a 2003 mystery thriller novel by Dan Brown. It is Brown's second novel to include the character Robert Langdon: the first was his 2000 novel ''Angels & Demons''. ''The Da Vinci Code'' follows symbologist Robert Lang ...
'' in a British court, they were ordered to pay the defendants' $1.75 million in attorneys' fees. The "American rule" differs; in most cases, each party bears its own expense of litigation. Supporters of tort reform argue that loser-pays rules are fairer, would compensate winners of lawsuits against the costs of litigation, would deter marginal lawsuits and tactical litigation, and would create proper incentives for litigation, and argue for reforms that would require compensation of winning defendants some or all the time. Certain proposed or implemented tort reforms adopt the English rule if the respondent should prevail but retain the American rule otherwise (e.g. California's special motion to strike in
defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
suits). In addition to reforms aimed at limiting plaintiff's abilities to claim particular categories of compensation, tort reform measures aimed at reducing the prevalence of lawsuits for
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 law known as ''negligence'' involves harm caused by failing to act as ...
, the most commonly alleged tort, aim to revise the doctrine of comparative negligence. Comparative negligence is a partial legal defence that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury, which progressively displaced the erstwhile traditional doctrine of
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
over the twentieth century which had precluded any damages being awarded in cases in which the plaintiff was deemed to be even partially at fault. Under standard or "pure" comparative negligence, a plaintiff can seek damages regardless of the portion of liability they bear, even where they are found to be more at fault than the respondent. As a tort reform measure aimed at combatting the perceived unfairness of allowing a party to seek extra-contractual damages where they are primarily at fault, many common law jurisdictions have adopted a "modified" doctrine of comparative negligence in which a party may only recover damages if it bears less than half the liability or if the other party bears more than half the liability. More radically, the American states of
Alabama (We dare defend our rights) , anthem = " Alabama" , image_map = Alabama in United States.svg , seat = Montgomery , LargestCity = Huntsville , LargestCounty = Baldwin County , LargestMetro = Greater Birmingham , area_total_km2 = 135,7 ...
,
Maryland Maryland ( ) is a state in the Mid-Atlantic region of the United States. It shares borders with Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware and the Atlantic Ocean t ...
,
North Carolina North Carolina () is a U.S. state, state in the Southeastern United States, Southeastern region of the United States. The state is the List of U.S. states and territories by area, 28th largest and List of states and territories of the United ...
, and
Virginia Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth are ...
continue to use contributory negligence, thus precluding a party who is even partly at fault from recovering damages for negligence. The abolition of the collateral source rule (i.e. the principle that a respondent in a tort action cannot use the fact that a plaintiff has already been compensated as evidence) is another common proposal of tort reform advocates in jurisdictions where the rule exists. They argue that if the plaintiff's injuries and damages have already been compensated, it is unfair and duplicative to allow an award of damages against the respondent.As a result, numerous states have altered or partially abrogated the rule by
statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
. Regulation of contingent fees; as well as rules regarding barratry, champerty and maintenance, or litigation funding more generally; is another aspect of procedural policies and reforms designed to reduce the number of cases filed in civil court. In common law jurisdictions, which typically rely on judicial precedent for the creation and development of new torts, the creation of statutory torts is a means through which legislatures reform and modify tort law. 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 The Occupiers' Liability Act 1957 (c. 31) is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Li ...
; 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 ''Wyeth v. Levine'', 555 U.S. 555 (2009), is a United States Supreme Court case holding that Federal regulatory approval of a medication does not shield the manufacturer from liability under state law. Facts Vermont jury trial The plaintiff los ...
'' (2009).


Comparison with other areas of law

Tort law is closely related to other areas of law, particularly contract and criminal law. On one hand, tort and contract law are typically regarded as the two primary fields within the
law of obligations The law of obligations is one branch of private law under the civil law legal system and so-called "mixed" legal systems. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights ...
, with tort forming a catch-all category encompassing civil wrongs that arise by operation of law in contrast to
breach of contract Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other part ...
, which encompasses violations of obligations that are freely assumed by parties to a contract. On the other hand, both tort and criminal law aim to address wrongful conduct and often overlap such that conduct which gives rise to a claim under tort law may also give rise to a prosecution under criminal law.


Contract law

Tort is sometimes viewed as the causes of action which are not defined in other areas such as contract or
fiduciary A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for exa ...
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 " sounds in tort or contract"; if both apply and different standards apply for each (such as a
statute of limitations A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In ...
), 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, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
such as
pain and suffering Pain and suffering is the legal term for the physical and emotional stress caused from an injury (see also pain and suffering). Some damages that might come under this category would be: aches, temporary and permanent limitations on activity, p ...
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 contract law, a warranty is a promise which is not a condition of the contract or an innominate term: (1) it is a term "not going to the root of the contract",Hogg M. (2011). ''Promises and Contract Law: Comparative Perspectives''p. 48 Cambri ...
. 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'' (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 Economic loss is a term of art which refers to financial loss and damage suffered by a person which is seen only on a balance sheet and not as physical injury to person or property. There is a fundamental distinction between pure economic loss an ...
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 The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...
''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 In law, wrongful dismissal, also called wrongful termination or wrongful discharge, is a situation in which an employee's contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contra ...
involving possible overlap with
labour law Labour laws (also known as labor laws or employment laws) are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship between employee, ...
contracts.


Criminal law

There is some overlap between criminal law and tort. For example, in
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...
an assault is both a crime and a tort (a form of trespass to the person). A tort allows a person to obtain a remedy that serves their own purposes (for example, the payment of
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
or the obtaining of
injunctive relief An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or i ...
). Criminal actions on the other hand are pursued not to obtain remedies to assist a personalthough often criminal courts do have the power to grant such remediesbut to remove their liberty on the state's behalf. This explains why
incarceration Imprisonment is the restraint of a person's liberty, for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. In the latter case it is " false imprisonment". Imprisonment does not necessar ...
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 mean that it requires a higher burden of proof to be discharged than the related tort. As with other areas of private law, the burden of proof required in tort, known either as the 'balance of probabilities' in English common law or 'preponderance of evidence' in American law, is lower than the higher standard of 'beyond a reasonable doubt'. 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 the criminal court of murder but later found liable for the tort of
wrongful death Wrongful death claim is a claim against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. In wrongful death cases, survivors are compensated for the harm, ...
.''Rufo v. Simpson''
86 Cal. App. 4th 573
(2001).
Both tort law and criminal law may impose liability where there is intentional action, reckless behaviour, carelessness,
product liability Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has b ...
without negligence (in the US and the EU), innocence, provided there is
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
,
battery Battery most often refers to: * Electric battery, a device that provides electrical power * Battery (crime), a crime involving unlawful physical contact Battery may also refer to: Energy source *Automotive battery, a device to provide power t ...
,
assault An assault is the act of committing 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 and a tort and, therefore, may result in cr ...
, and/or
trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery, woundi ...
. Under
Indian tort law Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts. As in other common law jurisdictions, a tort is b ...
and in other jurisdictions which adopted a version of the 1860
Indian Penal Code The Indian Penal Code (IPC) is the official criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. The code was drafted on the recommendations of first law commission of India established ...
, the torts of assault and battery are interpreted with reference to equivalent criminal offences under the Indian Penal Code.


See also

* Outline of tort law *
Causation in English law Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law. In the English law of negligence, causation proves a ...
* Index of tort articles * '' Journal of Tort Law''


Notes


References


Citations


Sources

* * * * Max Loubser, Rob Midgley, André Mukheibir, Liezel Niesing, & Devina Perumal. ''The Law of Delict in South Africa''. Edited by Max Loubser & Rob Midgley.
Cape Town Cape Town ( af, Kaapstad; , xh, iKapa) is one of South Africa's three capital cities, serving as the seat of the Parliament of South Africa. It is the legislative capital of the country, the oldest city in the country, and the second largest ...
, Western Cape:
Oxford University Press Oxford University Press (OUP) is the university press of the University of Oxford. It is the largest university press in the world, and its printing history dates back to the 1480s. Having been officially granted the legal right to print book ...
, 2009 (3rd edn. 2018).


Further reading

* * *


External links

* * * {{Authority control