Common law is the name of the law that operates in England and Wales which is also called the English law. This legal system started in England, and for now, it has spread to all the countries that were English colonies. Among them, there is Australia, Canada, New Zeeland and the United States. The main difference between English law and civil law system is that common law is based on judicial decisions, which is also known as the precedent law. Although English law doesn’t have formal divisions, it has some branches such as Private and Public law. The private law subdivides to create more branches like obligatory and property law. The obligatory law goes further to branch to torts and contract law. Regarding these branches, this paper will concentrate on the tort law.
The law of tort deals with civil wrongs, and it is under these wrongs the law awards compensation to the wronged person. A tort in itself is a civil wrong that a person commits against another, but not against the state. In general, the law of torts takes that there are duties owed to people in different situations (Horsey and Rackley, 2015). When an individual neglects such duties, damages incurred from such negligent would be imposed by the law.
The differences between the law of tort and other branches of English law can also arise from the central purpose of the Law of Torts. In general, one purpose is the compensatory function (Horsey and Rackley, 2015). In this, the law offers remedies to persons who suffer misconducts, loss, harm, violation of rights, or any other civil wrong that the society recognizes as invading people’s protected interests. When courts are awarding damages, they base their reasoning that the fact that the damages would bring the injured party to the state that party would have been had the accident or injuries not happened.
Secondly, the law of torts offers deterrent functions. The concept of deterrence implies that if the law punishes someone for a certain misconduct, that person will seek to evade such misconduct in the future. Regarding legal remedies, senior English judicial reviews agreed that deterrence cannot always be left to criminal law. For instance, in (Cassell & Co Ltd V Broome And Another, [1972]), the judge noted that heavy compensatory damages hold a sufficient deterrence function.
Another function of tort law is to bring a balance where there is a competition between rights. In simple, like as seen above, tort law allocates responsibilities for duties that one party owes to the other. For this reason, a person has an obligation to protect the rights of an individual even if the person is acting within the limitation of rights. For example, in the cases of self-defense. For example, in (Ashley and others v Chief Constable of Sussex Police, [2008]) the father brought a suit on behalf of the shot family member. The police had killed a relative of the claimant. The defendant alleged that he was acting in self-defense, which he was unable to prove that it was necessary. The judges had to balance between the right to self-defense and the duty to preserve the other person’s life.
Additionally, tort law can be used in filling the gaps to reach justice and award damages. In (White v Jone, [1978]), the judge found that it’s easier to justify the negligence of duty to care by filling the unacceptable gaps within English law. This case arose after Mr. White’s daughters decided to sue Mr. Jones for negligently failing to adhere to their father’s guidelines while drawing up the will. Lord Goff found that solicitors can sometimes escape the repercussions of their negligent. Due to that, he added that a court could find an appropriate relation between Mr. Jones, and the daughters despite that there was neither a contract nor fiduciary relations between them.
In English law, a distinction between civil wrongs and criminal wrongs is important in terms the outcomes of the case, the court that would hear the case, and the burden of proof to be put to the case. Furthermore, there are also contrasting terminology when handling both civil and criminal matters.
In general, crimes involve those acts which the society condemn and punish through the State. On the side of civil wrongs, these are violations that individual commits towards another person (Walston-Dunham, 2012). Following this distinction, it’s the duty of the wronged person to bring a claim to the court, but in criminal wrongs, it’s upon the state to bring a case to the court.
In civil law, the wronged person is named as the claimant, and the claimant brings an action against the defendant who is the wrongdoer. In the court, the claimant has the duty to prove his/her case basing the proof on balance of probabilities (Steele, 2014). This suggests that the claimant needs to manifest that the evidence favors his side rather than that of the defendant. Another point to note is that civil wrongs are brought to either a High Court or County Court.
If a claimant wins in a civil case, the court enters the judgment for the claimant. From there, the court would award compensation damages to the claimant for the losses or injuries resulting from the wrongs. The purpose of a civil action is to compensate the person who has incurred a loss or an injury or to provide other remedies like ensuring the other party carries out its obligations or refrains from acting in a wrongful manner.
On the side of criminal wrongs, a wrongdoer is called a defendant or the accused. Unlike in civil law where a violation is committed towards another person, criminal law takes that a wrong is committed towards the state, and it’s upon the state to take the matter to the Crown Prosecution Service (CPS) (Bussani and Sebok, 2015). Under very rare circumstances would ordinary persons bring a prosecution matter against defendants and this is when CPS refuses to commence the matter.
Another contrast of criminal wrongs over civil wrongs is in the courts. Criminal wrongs are first brought either to a Magistrates’ Court or a Crown Court. Another difference is that the prosecution is supposed to proof its case beyond reasonable doubt, which is not the case in a civil matter. Here the defendant doesn’t need to prove that he is innocent, and doesn’t need to bring evidence to the trial. A defendant is convicted if he is found guilty and acquitted if found not guilty. Additionally, unlike in civil matter, if the accused is found that he actually committed the wrongs, he/she would be sentenced or fined. There would be no compensation.
The tort of negligence covers all the situations in which someones injuries results from another person’s negligence. For a successful claim of negligence, the claimant ought to establish the three principles. The first principle is that the claimant must demonstrate that there was a duty to care. The landmark conflict that set this rule was the case of (Donoghue v Stevenson, [1932]). In this case, the claimant went to a cafe where the defendant got the claimant an ice cream together with a bottle of ginger beer. After pouring the beer into the glass, a decomposed snail emerged that caused the claimant to suffer physical injuries. The court held that the manufacturer had a duty to care. The court held that the manufacturer had a duty to care. The court held that every person owes a duty of care to his/her neighbor. This case established what came to be called the neighbor principle.
The second principle concerns a requirement of the proof. In this, it’s upon the claimant to bring proof that defendant actually broke that duty of care that he/she owed to the claimant. For example, in (Nettleship v Weston, [1971]), the defendant was learning from the claimant on how to drive. She hit a post causing the claimant injuries. The court held the defendant was liable despite being a learner.
The third principle involves proving the breach of the duty to care owed by the defendant. For this one, there are two main necessities. For one, the claimant would first show that the defendant’s action created the claimant’s damages or losses. Secondly, the losses or damages that the claimant suffered must be reasonably foreseeable. For example, in (Barnett v Chelsea & Kensington Hospital Management Committee,[1969]), A widow took action against the hospital after the death of her husband since the hospital failed to examine him before the husband’s death. The court maintained that the hospital owed a duty of care in conduction examinations to the patient, but the failure to examine the patient didn’t necessarily cause his death.
However, despite having all these grounds, the defendant can also raise his/her defense. One of these defenses in called contributory negligence. This defense covers situations where the claimant’s actions cause the accident. For instance, in (Sayers v Harlow UDC, [1958]) The claimant rocked herself in the toilet. She could not open it and never attracted attention. She climbed and fell incurring damages. She succeeded in the claim, but the losses were decreased by 25%
The second one is consent. Where the claimant freely gives the consent to take the risk, he/she can’t come back to claim damages after an accident. However, where the claimant had no choice rather than to take the risk, the defense will possibly fail. In Imperial Chemical Industries Ltd v Shatwell, [965]) both the claimant ignored to take safety precautions while testing the detonators. The claimant sustained injuries and brought an action against the defendant. The court held the claimant had voluntarily consented to the risk.
Another defense is illegality. A claimant cannot succeed in the claim if he/she was injured while undertaking an illegal action or a criminal offense. For example, in (Ashton v Turner, (1980]), the claimant was a burglar suing the defendant who was another burglar. The claimant was injured in a speedy escape. The court held that the claimant cannot recover damages since it was an illegal act.
The main purpose of the law of tort is to offer compensation to the claimant for the losses suffered. Therefore, there are two types of damages which the claimant can seek. For one, the claimant can seek to get compensatory damages (Faure, 2009). These are damages intended to restore the claimant to the position he would have been had the defendant refrained from committing the tort. In (Rudlin, 2007), most courts separate compensatory damages into general and special damages.
Special damages are meant to compensate the claimant for the quantifiable monetary damages. For example, the claimant can recover lost wages, medical expenses, benefits he/she would have received either during the recovery time or in the future. Among the special damages, the claimant can also recover any extra costs incurred, any lost or broken irreplaceable items, or the costs incurred for replacing or repairing the damaged property.
For general damages, the claimant can recover compensation for nonmonetary of things like pain or suffering. Other types of general damages that a court can award are lost companionship, disfigurement, and reputation, impairment of both physical and mental capacity.
Additionally, the court can award punitive damages. In (Miller and Jentz, 2008), these are damages meant to punish the defendant and deter any other person from committing a similar wrong. These damages are more appropriate in situations where defendant acted in a conspicuously unacceptable manner. In short, punitive damages would be awarded in cases of intentional torts and very rare for cases of actions negligence. However, cases of gross negligence would amount to punitive damages like where the defendant intentionally failed to carry out his duty.
Conclusion
Torts are unlawful conducts. When a person commits a tort, the society calls the intervention of tort law to compensate the injured party whose foreseeable damages resulted from the wrongdoer’s misconduct. The common torts recognized by tort law are assaults, trespass, negligence, nuisance, defamation among others. However, this list will continue as more wrongs come due to the changes experienced in both the society and law. This paper has covered some of the torts, damages and the principles of tort.
References
Horsey, K. and Rackley, E. (2015). Kidner’s casebook on torts. 13th ed. Oxford University Press, p.11.
Chamallas, M. and Wriggins, J. (2010). The measure of injury. 5th ed. New York: New York University Press, p.157.
Walston-Dunham, B. (2012). Introduction to law. 6th ed. Clifton Park, NY: Delmar Cengage Learning, p.98.
Steele, J. (2014). Tort law. 3rd ed. Oxford [u.a.]: Oxford Univ. Press, p.241.
Bussani, M. and Sebok, A. (2015). Comparative tort law. 1st ed. Cheltenham: Edward Elgar Publishing, p.111.
Rudlin, D. (2007). Toxic tort litigation. 1st ed. Chicago: American Bar Association, Section of Environment, Energy, and Resources, p.41.
Faure, M. (2009). Tort law and economics. 1st ed. Cheltenham, UK: Edward Elgar, p.232.
Miller, R. and Jentz, G. (2008). Business law today. 8th ed. Mason, Ohio: South-Western/Cengage Learning, p.112.
Cases
Ashley and others v Chief Constable of Sussex Police [2008] UKHL 25
Ashton v Turner and Anr. [1981] l QB
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Cassell and Co Ltd v Broome and Another [1972] 2 WLR 645
Donoghue v Stevenson [1932] AC 562 House of Lords
Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 House of Lords
Nettleship v Weston [1971] 3 WLR 370 Court of Appeal
White v Jones [1995] UKHL 5
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