Requirements of proof

Of course not every wrong committed in society is remediable in tort; the plaintiff has to show that he has suffered an action recognised as a tortious one, and he must show that his relation to the tortfeasor (committer of the tort) gives him the legal capacity to sue. Nevertheless, the law of tort covers a wide area of wrong doings. For example, the tort of nuisance covers many situations where even though no property is taken or trespassed upon, your enjoyment of land is interfered with, for example, by a neighbour who creates too much noise or whose rubbish causes unpleasant smells. The tort of defamation covers attacks against someone’s reputation through the written or spoken word. The tort of negligence has particularly wide application. Some torts are known as statutory torts — the kind of breach of duty which must be proved is defined in a statute.

The requirements of proof differ for each tort. Sometimes it is necessary to show a degree of carelessness, as in the tort of negligence. In others, a defendant may be liable even if he was not at fault, such as the strict liability tort where an animal you keep on your land manages to escape and cause damage. In some torts it is necessary for the plaintiff to show that he has suffered actual damage or injury, such as the tort of nuisance, whereas in others no harm need be shown. For example, in the tort of false imprisonment, it is enough to show that you have been detained against your will, even if it was for a short time, no force or threats were used, and you were not harmed or inconvenienced. Under the concept of vicarious liability (liability on behalf of someone else) it may be possible to sue the employer or a person who commits a tort in the normal course of his employment. This may be useful if high damages are being sought, since a defendant cannot be forced to pay more money than he has.

Some duties of care have been long recognized by the law and do not require much proof, for example, the duty of a doctor to exercise a high degree of care in treating his patient. But other duties depend upon the situation and must be proven. For example, what duty does a passer-by owe to the victim of a road accident when he tries to give emergency aid? In English law a general principle has been developed that we owe a duty to people closely affected by our actions to avoid causing harm which we could reasonably have foreseen.

Using this principle, a large body of case law has been created to clarify the duty of care in different areas of life. In developing case law, the courts have also been guided by common sense and public policy. One aim is to allow people to get just compensation for harm suffered without letting them forget their own responsibility to take care of themselves. Another is to discourage a big increase in the number of civil actions because of the amount of time the courts would need to deal with this.

1. Use the information from the text and speak on the difference of requirements of proof for each tort.

2. Define the concept of “duty of care”.

3. Explain a general principle in English law and its influence on case law.

Ex.6. Look through the texts again and find the terms for the following definitions.

1. person initiating complaint ____________

2. improper restraint or confinement of someone ____________

3. court order prohibiting an act that might injure ____________

4. defense based on injured party’s acceptance of risk ____________

5. actor liable regardless of safety precautions ____________

6. monetary compensation ____________

7. those who engage in lawsuits ____________

8. token damages ____________

9. defense requiring recovery only according to degree of fault _________

10. torts in which the tortfeasor purposefully inflicted harm ___________

11. person complained against ____________

12. monetary compensation set to make example of defendant _________

13. defense disallowing recovery if injured party’s negligence contributed to injury ____________

14. the damaging of another’s reputation by making false statements ____________

15. monetary compensation for real harm done ____________.

Ex. 7. Find the English equivalents in the texts and translate the sentences into Russian.

1. (Существенное различие между гражданскими правонарушениями и преступлениями) is that the former are the subject of civil law disputes between private individuals, and the latter are prosecuted by the state.

2. As for all civil actions (требуемая степень убедительности доказательств) is lower than in criminal prosecutions.

3. In general (почти каждый может искать и отвечать в суде) in tort — a child, someone who is mentally sick, even someone who has died.

4. Under the concept of vicarious liability (возможно подать иск против нанимателя) if a person who commits a tort in the normal course of his employment.

5. Nevertheless, the law of tort (охватывает широкий спектр правонарушений).

6. (Некоторые правонарушения известны как статутные) — the kind of breach of duty which must be proved is defined in a statute.

7. In contract, the aim of damages (состоит в том, чтобы поставить истца) in the position that he would have been in it if the contract had been. performed.

8. (В некоторых случаях гражданских правонарушений истцу необходимо) to show that he has suffered actual damage or injury.

9. (Число исков о халатности) is increasing all over the world, as is the amount of damages.

10. If the tortfeasor’s acts are notoriously wilful and malicious, a court may impose (убытки, присуждаемые в порядке наказания).

11. (Когда-то дела имели исковую силу только) if personal injury or damage to property could be shown.

12. (Защита ссылкой на вину потерпевшего) involves the failure of the injured party to be careful enough to ensure personal safety.

13. Businesspeople must be especially aware of tort law because of the (доктрина “пусть принципал отвечает”).

Ex.8. The area of tort law covers a number of different aspects: Damages, Insurance, Product Liability, Torts and Personal Injury, Workers’ Compensation. Read through the short texts below and determine if the following statements are true or false.

a. Punitive damages are awarded to compensate the victim for his loss or injury.

b. When there is no insurance, the individual causing negligence may have to bear the loss.

c. According to the concept of product liability any party along the chain of manufacture is liable for damage.

d. The defective product which was loaned is not the subject of product liability suits.

e. Monetary damages include only present losses.

f. An injunction prevents the continuation of the tortious product.

g. Workers’ Compensation laws provide fixed monetary benefits to people disabled on the job.

h. Under these laws, dependants have to be engaged into litigation.

1. Damages, in a legal sense, are the sum of money the law imposes for a breach of some duty or violation of some right. Generally, there are two types of damages: compensatory and punitive. The former are intended to compensate the injured party for his loss or injury; the latter are awarded to punish a wrongdoer.

2. In the absence of insurance, three possible individuals bear the burden of an economic loss: the individual causing the loss via negligence or unlawful conduct; or a particular party who has been allocated the burden by the legislature, such as employers under Workers’ Compensation statutes.

3. Product liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. This includes the manufacturer of component parts (at the top of the chain), an assembling manufacturer, the wholesaler, and the retail store owner (at the bottom of the chain). Products containing inherent defects that cause harm to a consumer of the product, or someone to whom the product was loaned or given, are the subjects of product liability suits.

4. Torts are civil wrongs that are recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm which constitutes the basis for a claim by the injured party. The injured person may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages. Among the types of damages the injured party may recover are: loss of earning capacity, pain and suffering, and reasonable medical expenses. They include both present and future expected losses.

5. Workers’ Compensation laws are designed to ensure that employees who are injured or disabled on the job are provided with fixed monetary awards, eliminating the need for litigation. These laws also provide benefits for dependants of those workers who are killed because of work-related accidents or illnesses. Some laws also protect employers and fellow workers by limiting the amount an injured employee can recover from an employer and by eliminating the liability of co-workers in most accidents.

Ex.9. Translate the following text into English.

Термин “деликт” означает правонарушение; в широком смысле слова — антиобщественное деяние, причиняющее вред обществу и караемое по закону. Правонарушения подразделяются на: гражданские (причинение вреда личности, имуществу гражданина или организации), административные (например, нарушения правил дорожного движения), дисциплинарные проступки (прогул) и т.д. За правонарушения законом предусматривается соответственно гражданская, административная, дисциплинарная и уголовная ответственность. Согласно классификации, действующей сегодня в Великобритании, Австралии и некоторых других станах, правонарушения делятся на преступления и гражданские правонарушения, а преступления, в свою очередь, делятся на более серьезные (преследуемые по обвинительному акту) и менее серьезные (преследуемые в порядке суммарного производства).

DISCUSSION

1. Give your reasons why torts are often easier to prove than crimes.

2. Name and briefly describe torts that most affect businesses. Give examples.

3. Agree or disagree with the statement “The king can do no wrong”. Exemplify your answer.

4. Life shows us that instead of righting personal injuries in a court of law, wronged individuals often seek revenge with their own hands. The resulting violence endangers, and may even destroy, the peace and stability that mark civilization. Give your pros and cons.

5. Argue for or against the following statement “Instead of suing the city authorities, people who fall into holes in the street should accept responsibility for their own carelessness”.

6. Intrafamilial immunity, which once prevented all parent/child suits for tortious conduct, now applies only to negligence. A child can now sue his or her parents for intentional torts such as assault and battery. Express your opinion.

7. Describe the principal torts of your country in recent years and speak on their main reasons.

8. Prepare a short presentation on Tort Law in your jurisdiction.

UNIT 8

Дата добавления: 2015-11-14