Discuss About The Textbook Civil Liberties And Human Rights?
The law of torts constitutes a wrongful action which has been committed against an individual (which may include an artificial legal person) instead of a state. The fundamental principle of the law of tort is that every citizen has certain liberties, rights and interest which have to be provided protection through the legal principles. In case of tort law the interest is given protection through the concept of damages provided by the courts against any infringement of the civil rights in relation to an individual. In addition through the issue of an injunction (an order by the court to refrain a person from indulging a particular act) the court prevents the person from committing an act. The law of tort is a very bread ranging subject and one of the most complex in relation to all legal spheres in relation to laying down all of its embracing principles. As provided by Abraham and Kenneth (2017) a tort may be defined as a civil wrong which makes an aggrieved party to be entitled to compensation in from of damages[1]. However the paper provides an argument that the law of tort is much about civil liberties as it is often misunderstood.
The purpose of the paper is to discuss the objectives of tort law as it applies to the legal world along with make the audiences know that the law is mostly intends to provide civil liberties to the citizens.
In order to discuss about the objectives of tort law the various areas in which the provisions of the law apply have to be analyzed. The law of tort is divided into various areas such as Negligence, Nuisance and defamation. As defined by Christopher (2017) the tort of negligence is a set of legal principles which are imposed so that a wrongdoer can be punished for his action[2]. As provided by Frank (2016) negligence is the area of law which has been enacted to ensure that a person whose rights have been violated is duly compensated by the wrongdoer in relation to the loss caused by him because of the wrongdoer[3]. However a closer analysis of tort of negligence in the light of the theory of deterrence as provided by Lee, David and McCrary (2017), which evidently provide the result that the law of negligence has been enacted so that the person may be careful towards his action which might foreseeably cause injury to another[4]. The assertion can be further strengthened and supported through the analysis of the elements which are required to establish a claim of negligence. The first element which is necessary to establish the tort off negligence is the duty of care. As provided by one of the most talked about case Donoghue v Stevenson[5] a person owes another a duty to care for, even if there is no legal relationship between them which would create an obligation, if a person can foresee that his action can harm the other as a reasonable person would have done.
According to Richard (2016) civil liberties are the position of being imposed with laws which have been brought into existence for the common good of the community, with special reference to the freedom of speech and action[6]. Murray, Nancy, and Wunsch (2016) defines civil liberties as the right of a person to be imposed with legal obligations which are established only for the good of the community[7]. As highlighted by Neil (2016) civil liberties can have a very broad definition which may vary from society to society by the basic principles of civil liberty is that law should ensure that a person is able to exercise properly his right to actions and speech. [8]The concept of the duty of care therefore itself establishes civil liberties not only to the aggrieved party but also to any potential wrongdoer. A person is not prevented according to the duty of care to exercises his civil liberties but is only directed to continue his actions in such a way which would not harm another person. In the same way civil liberties are provided to a person to safely carry on his activities with the assumption that other would not carry out an act which may harm him.
The second essential in relation to the tort of negligence arises when the duty of care is violated. In the famous case Vaughan v Menlove[9] the court provided one of the most commonly used test for the purpose of identifying whether a existing duty to care for has not been complied with, known as the objective test. The principles of the famous test imply that a reasonable person (Hypothetical) has to be placed in the same situation where the alleged wrongdoer was while the said negligence was committed and then see whether the reasonable person would have taken a more cautious approach towards the incident to avoid the harm caused. As provided by Amanda (2015) a duty of care and the harm being caused cannot establish negligence unless it is provided that the wrongdoer acted in an unreasonable manner[10]. Therefore it can be provided that the concept does not prohibit any civil liberty but only ask a person to act in a way which is reasonable and acceptable to the society. However as per the provisions of the Civil Liability Act of the different states in Australia a duty is breach on not is analyzed in the light of the significance of the harm. This provision may to a little extent can be used by the critics to say that the law of tort imposes obligation to be extra cautious and thus restrict civil liberties. However if the provisions are interpreted in the light of the social utility provision of the Act it can be stated clearly that a person needs to be extra cautious in relation to only those activities which are of high utility to the society. In addition the actions of a professional as provided through the case of Boyd v. Ackley[11] are compared to a reasonable “professional” and not a normal person. This is because it is common sense to believe that a professional would have more knowledge as compared to a reasonable person and thus is expected to work in an increased proficient manner. Moreover the defenses which have been provided through the tort of negligence such as Contributory negligence, intoxication and failing to take precautions against obvious risks also help a defendant to be aware that merely because they have been a little negligent they cannot be held accountable for the all the loss which have been suffered by the plaintiff which may because of his own actions. Thus it can be stated evidently that provisions which are used to analyze the breach of duty of care also do not intervene with any civil liberties of a person. Damages which are provided in the case of negligence are only to compensate the loss which has been suffered by a party and not to punish a person for being negligent as it is done in other for m of law such as corporation law and criminal law trough penalties.
Defamation is another area of tort law which deals with the right to speech of a person. It is often misunderstood to have imposed unwanted restriction on the liberty to speak. As defined by Richard et al. (2015) is a “catch all” term in relation to any statement which hurts the reputation of another person[12]. The concept is based on the fact that each person in the society has the right to maintain his reputation rather than imposing a restriction on another person to talk in relation to others. The tort of defamation purport to protect the reputation of an individual in the society from any wrongful act depicted to a group or a community as whole by another person[13]. It does not prevent a person to carry out his speech in relation to another personally. Defamation can take place in two forms one is written defamation known as Libel and the other is spoken defamation which is known as slander[14]. The tort of defamation in order to provide civil liberties to the citizens contains significant defense which ensure that the right to speech of a person is not restricted and in addition the right is not used to cause harm to another person. The law of defamation in Australia is largely based on the English law of defamation. However there are certain limitations which have been added through statues along with the commonwealth constitution which limits the power of the government in relation to political speeches as established through the famous case of Lange v Australian Broadcasting Corporation[15] This step by the legislature clearly indicates that the intention of the law of torts as often misunderstood is to provide civil liberties. Even the government itself is not allowed to use the law to the detriment of other. The defenses in relation to defamation provide that defamations cannot be established if the statement made is true, in good faith with reasonable belief to be true, an opinion, mere vulgar abuse, comment for public interest and innocent dissemination. however in order to ensure that the defenses which have been provided in relation to defamation are misused in order to cause harm to another person the law has clearly stated to apply the principles of civil liberties that the defenses are not applicable if an element of malice is found in the actions of the defendant.
Nuisance is also a common law tort which deals with annoyance, offence, injury or trouble in relation to a property of a person[16]. A nuisance can be both private and public. As provided by Neyers (2017) nuisance is an unwanted act or omission in relation to discharging a legal duty which may cause inconvenience to others towards exercising rights which are common to all[17]. Traditionally the term nuisance is used in three ways. Firstly to describe a condition or activity that is annoying or harmful to others such as a rubbish heap, an indecent conduct or a smoking chimney. Secondly to describe the injury which result out of the conditions as discussed. Thirdly to provide and describe a legal liability which arises from the above discussion. However the actions in nuisance can only arise out of activities which take place in the property of the wrongdoer. Again in the same way as compared to that of defamation and negligence, nuisance also operates to promote civil liberties as opposed to restricting the right of an individual. [18]At common law and equity every person has the right to enjoy their property in a peaceful manner, nuisance ensures that such right is provided to the individuals in accordance to civil liberties by restricting the right of others only to such extent which is necessary to prevent injury or harm to others.
Civil liberties are one of the fundamental needs of the modern day society. They are a kind of personal freedom which should not be curtailed under any circumstances by the legislature. However civil liberties must not be taken as a right which allows for causing harm to another. From the above discussed analysis it can be evidently stated that the primary objective to tort law is very much about civil liberties. This is because all the major areas of tort law aim to protect the rights of citizens rather than focusing on imposing restrictions. The elements for such areas have been framed in such a manner which ensures that not only the rights of individuals are protected but also no additional restrictions are imposed on other individuals in relation to such rights. The law of torts thus mostly purports to provide and protect right rather than taking them away or restricting them.
References
Abraham, Kenneth. The forms and functions of tort law. West Academic, 2017.
Barendt, Eric. “Defamation Law.” (2017): 1-5.
Cavico, Frank J., et al. “The Tort of Negligence in Employment Hiring, Supervision, and Retention.” American Journal of Business and Society 1.4 (2016): 205-222.
Donoghue v Stevenson 1932 AC 522
Lange v Australian Broadcasting Corporation (1997) HCA 25.
Lee, David S., and Justin McCrary. “The deterrence effect of prison: Dynamic theory and evidence.” Regression Discontinuity Designs: Theory and Applications. Emerald Publishing Limited, 2017. 73-146.
Lyons, Amanda. “Duty of care.” Good Practice 12 (2015): 24.
MacCallum, Walter. “Defamation actions and social media: Where are the risks?.” Governance Directions 67.11 (2015): 677.
Murray, Nancy, and Sarah Wunsch. “Civil Liberties in Times of Crisis: Lessons from History.” Massachusetts Law Review 2015 (2016): 2014.
Neyers, J. W., and Andrew Botterell. “Tate & Lyle: Pure Economic Loss and the Modern Tort of Public Nuisance.” Alta. L. Rev. 53 (2015): 1031.Neyers, J. W. “RECONCEPTUALISING THE TORT OF PUBLIC NUISANCE.” The Cambridge Law Journal 76.1 (2017): 87-115.
Parkes, Richard, et al. Gatley on libel and slander. Sweet & Maxwell, 2015.
Richards, Neil. Intellectual privacy: Rethinking civil liberties in the digital age. Oxford University Press, USA, 2015.
Robinette, Christopher, et al. “JOuRNal Of TORT law.” (2017).
Stone, Richard. Textbook on civil liberties and human rights. Oxford University Press, USA, 2014.
Swisher, Peter N. “Virginia Practice Series: Tort and Personal Injury Law.” (2015).
Vaughan v Menlove (1837) 3 Bing. N.C. 467
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