Readings: Chapter 1 (principles book)
What is a Tort? You mean a tart? Like a caramel tart?
Torts are common law causes of action. A tort is a wrongdoing that results in injury to another person or damage to property. Torts differ from crimes in that crimes are punishable by the state in criminal court, whereas torts generally allow individuals to seek compensation for their injuries in civil court. Some acts can be both a tort and a crime. For instance, threatening to seriously injure someone is, in tort law, an assault; the victim may be able to sue the perpetrator in civil court for compensation for the emotional distress caused by the tortious assault, while the state may seek jail time for the perpetrator in a criminal court. In order to win a tort lawsuit, the plaintiff (the person who initiates the lawsuit) must show that the defendant (the person accused of wrongdoing in the lawsuit) had a duty to act in a particular manner, breached that duty, and actual damages or injuries occurred as a result of the breach.
* A tort is actionable at the suit of an individual, or individuals.
The genius of the common law of torts is:
(a) To remain constant- developing from ancient common law principles which require human interaction to be placed within different categories such as trespass, negligence and nuisance; and (b) To develop constantly- torts constantly evolve to meet changing social conditions through the creation of ‘new torts’ such as negligence and the removal of old such as strict liability for the escape of dangerous substances.
Elements of a Tort
* There are three basic elements in the law of torts:
1. Loss – experienced by the plaintiff
2. Causation – the loss must have occurred as a consequence of the defendant’s actions 3. Fault – the defendant must be responsible in some way for the particular loss suffered by the plaintiff * There are exceptions, however. For example, no-fault liability (strict, vicarious and statute-based).
Compensation, Fault and the Tort of Negligence
* Negligence is usually concerned with compensation for personal injuries. * Thus, there can be no liability in the tort of negligence without fault on the part of the defendant. The plaintiff must prove that the defendant was at fault in order to recover compensation for his/her injuries. * The traditional fault-based system of compensation means that certain individuals are able to be compensated for loss/injuries incurred, whilst others are not, according to the moral culpability of the defendant. * Most potential defendants, however, are insured against the risk of liability in tort. Insurance
* Insurance against liability for personal injuries is legally compulsory for drivers – forms part of registration. * Also compulsory for employers to insure against common law liability for workplace injuries to their employees. * Compulsory insurance means that an injured plaintiff can sue a defendant for full compensation, whether or not the negligent defendant has any money of his/her own as it is the defendant’s insurer who actually compensates the plaintiff. * In the case of compulsory insurance, the presence or absence of fault does not directly affect the defendant as he/she suffers no loss either way. Nevertheless, the presence or absence of fault is crucial to the plaintiff as it affects whether or not he/she can recover compensation from the defendant’s insurance. * The practical function of the concept of fault is to determine which injured plaintiffs have access to insurance funds, and which do not. E.g. drunk driver is responsible for an injury, but a bee-stung driver cannot be held responsible for the same injuries, thus the plaintiff in the latter case will not recive compensation. * Yet, this means that insurance premiums increase by a fraction of a percent for the whole community, as the loss borne by the defendant’s...
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