Torts in Common Law

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Torts and Damages  Historical Evolution, Part II – In (English) (English) Common Law 1. Engl Englis ish h Legal Legal Hist Histor ory y 1.1 The Anglo-Saxon Period – Early Invasions and Conquests Celtic Invasions

  Bronze and Iron Ages

Celtic customs had spread throughout England but had no identifiable legacy in later

legal or political institutions

Roman Conquest

 5555-54 54 BC

Roman Law     

Teutonic Tribes

 

vanished from Britain when the Romans left; what few vestiges of Roman Law embodied in English Law  were not derived from the period of Roman occupation



From Angeln, South Denmark 


From Weser and Elbe

Jutes   

Invade Invaded d by Julius Julius Ces Cesar; ar; Eng Englan land d bec became ame a provin province ce of the Rom Roman an Emp Empire ire for over over 3oo yrs; yrs;

From Juteland

5th-6th centuries These 3 tribes came to be known as the “English” Early Teutonic Institutions – of particular importance in the molding of Anglo-Saxon society  o o

Territorial Division: groups of tribal communities formed a pagus a pagus (district)  (district) and groups of pagi of pagi (pl.) formed (pl.) formed civitas (state) Social Divisions: Division s:  King/nobility (not all of the tribes)  Freemen – owned tribal lands  Cultivators (of the soil) – held lands under the freemen; possessed no political rights  Slaves

Danish/Viking Invasions

  Protracted Viking raids took place between 835-865; but by 1042, the English re-conquered England;

Danish  Customary Laws heavily influenced English customs in some areas


Of Anglo-Saxon Society…  “Anglo-Saxon” is referenced to that period of English history prior to the Norman Conquest (597- 1100)  Separate kingdoms established by the Teutonic tribes were unified by King Alfred in c. 886 (Cf. “Early Teutonic Institutions” above above))   Anglo-Saxon Institutions (Cf. o

Territorial Territ orial Divisions Division s Township or Vill  –  – smallest territorial division; each vill  is  is headed by reeve reeve (deputy  (deputy of   an ealdorman ealdorman)); possessed an assembly of the freemen known as the gemot  The Hundred – Hundred – group of adjoining townships; consisted of an area taxed at 100 hides  or that the unit consisted of 100 fighting men of the national defense; chief of the hundred was known as the hundr hundredseal edsealdor; dor; each hundred also has its own assembly  

calledShire – the hundred-gemot   assembled once a month The Shire  – consisted of assembled groups of hundreds; headed by an ealdorman (nobleman of  high rank) has its own assembly, the shire-moot  which   which met regularly; shire authorities had the responsibility of calling out the local militia at the king’s command



Social Divisions Divisio ns  Slaves – possessed no rights; often traded; comprised of those reduced to slavery as punishment or by voluntary sale (children over 13 yo can sell themselves as slaves) or descendants of conquered enemies Serfs (Partial Freemen) – Freemen) – possessed some rights (e.g. marriage); in general, serfs are  slaves who had acquired some rights he was able to protect Common Freemen  Freemen  – had complete personal freedom; can own cattle on common  pastures; he was liable to attend local courts, pay taxes and render military service Nobili Nob ility ty – status is achieved by birth or by service (performed duties for the king);  granted land in return for their services (ergo, possession of land = nobility) 


Land Holding Hold ing land was cultivated by its inhabitants;   individual households are allowed to occupy/cultivate at least 1 hide (approx. 120 acres);  transfer and inheritance of landholdings depended on family and township customs no general theory of tenure but property of land are properly classified (i.e. the largest  


King Ki ng – head hea d ofhad the the nation natright ion;; kingsh kin ip is aheredit here ditary ary but thedescendants witenigamot  of  elder/the wise) to gship choose king from male of  (council a recently  deceased king; had very close links with the church *The Witenagemot Witenagemot   – counci councill of wise men/mee men/meetin ting g of the wise; equi equival valent ent to a national assembly; its composition depended on the will of the king; members include: the king, princes, bishops, abbots and ealdormen; it could give advice to the king when he asks for it; does not meet regularly; in some cases, it acted as the supreme court of   justice

estates, devisable and alienable, wereclasses appropriated noblemen but andopen the church by  express grant of the king while other of landsonly weretoinalienable for lease) **these practices on landholding have immense influences in later developments re: feudal feu dalism ism,, the princip principle le of commen commendat dation ion and ultima ultimatel tely y on the result resultant ant soc social ial hierarchy of England

Laws and Court C ourtss dooms   (royal proclamations of    Anglo-Saxon law came down principally in the form of dooms existing law or announcement of new law)  However, Anglo-Saxon lawmakers never established a systematic and comprehensive code of laws, nor were there any coherent general theory of law  Law was made up in large part of customary customary rules + dooms dooms which  which were often local than  national in operation and based largely on oral tradition Consolidation of the old Teutonic kingdoms helped abolish the “folkright” (rules, tribal  

in origin, which “judicial consciousness” grants of the kingexpressed weakened,the nay, destroyed the folkright of the people); the powers and The “King’s Peace” – every freeman has his “peace,” but it is derived from the king’s peace which must be respected everywhere. Acts of violence are breaches of such a “peace” and, hence, must be punished  this concept in criminal and civil adjudication  bears immense influence to later developments in the maintenance of public order

1.2 Period of the Norman Conquest    

 William (Duke of Normandy), with the support of the Papacy, invaded invaded England in 1066 He was crowned on Christmas day 1066 as “King of the English” – his conquest is considered a decisive turning point in English history  ***Normans are from the northern parts of England which have been heavily influenced by the Danish Effects Effec ts of William’s William’ s Conquest: Conques t: o o o o

Confirmation of existing English  William, however, established thelaws feudal system Land was considered as held by the king Systematiza System atization tion of English English customary customary law   upon which the massive fabric of common law was constructed 


o o

Feudalism – an organization of society characterized by the following: o Social hierarchy dominated by a chief (king), and great tenants-in-chief who held the former’s land o Relationship between tenants-in-chief/(land)lords and those who held lands for them (vassals)  based on mutual promises of protection and military service Tenure of land was accompanied by private rights exercised by the lords over his inferiors, to the o exclusion of the king (local jurisdiction) – ergo, fealty was owed to the immediate superiors and o

  

Framework of a strong centralized government + development of national unity  Place of royal power in the legal system was emphasized

not to the sovereign The feudal economy of land was the kingdom’s main source of wealth

 William the Conqueror was succeeded by his son William II (notorious for oppressive rule and extortionate taxes) Upon William II’s death, he was succeeded by Henry I, who was followed by Stephen (under whom the country fell into anarchy) Stephen’s successor, Henry II, II, was a king of intense reforming energy, and was known to be the great administrator and legislator Under Henry II, the power of the crown increased, government became more centralized o The authority of local tribunals, feudal barons and the clergy declined significantly o Common law developed! And developed! And the Writ the Writ System developed considerably, too! o Trial by jury was established in some jurisdictions + judges of the royal court were made to o travelled by circuits to hear cases concerning the king’s peace everywhere Henry II was succeeded by his son Richard I, who was later succeeded by his brother John John was tyrannical and capricious o Baro Ba rons ns an and d co coun unci cils ls of freem freemen en revo revolt lted ed whic which h forc forced ed him him to sign sign The Great Charter of  o  Liberties The Charter Charter is  is a statement of the freedoms and entitlements (pseudo-Bill of Rights) of the o church and all freemen of his kingdom on various matters (but based on the Feudal System) – in effect, the crown’s power was restricted by the exercise of the freeman’s rights John was succeeded by Henry III Judge-made law, in the form of judicial declarations concerning the law, grew – ergo, common o law took shape! The parliament was summoned and developed o Henry III was succeeded by Edward I o Known as “the English Justinian” o

His reign saw the proliferation of legislation – the law came into its own Common law laid low  Edward I was succeeded by his son s on Edward II, who himself was succeeded by Edward III Finally came Richard II The great revolt took place (1381) o Foundation of constitutional law were strengthened (e.g. writ of habeas corpus) o o

 

--ooOoo-2. Torts in a Nutshell: Nutshell: Injurie Injuriess to Persons Persons and Property Property (E. Kionka) Kionka) “Tort law is a complex machine for shifting human losses. Like other complicated machinery… it is best  understood as the sum of its individual component parts. Efforts to change these parts to make them more similar may only impair their individual performance.” – E. Kioka 2.1 Origins, Objectives and Overview of Tort Liability “Tort” is an elusive concept – there is no coherent, general principle of tort liability  o This is largely due to the fact that virtually all diverse forms of human activity may be a  source of “harm” and therefore possible sources of “tort liability”


 Also, common law (from which tort liability originated) developed only a system of  indivi ind ividua dually lly named named torts torts (trespa (trespass, ss, deceit deceit,, slande slander, r, assaul assaultt and batt battery ery,, etc) etc) withou withoutt consolidating them, in some way, into broader articles of law  Except for negligence, there has been little synthesis of disparate, nominate “torts” into larger categories Tort law, as it spurred spurred out in common common law, developed a poster posteriori  iori   (i.e. inducti inductively: vely: from specific specific cases to general principles of law), ergo, the diversity of tort actions available  this makes it not susceptible to generalizations 



“The one common element of all torts is that someone has sustained a loss or harm as the result of some act or failure to act by another.”  Of Causation and Fault…  Causation is the sine qua non  tort liability is only just if the tortfeasor’s conduct was a substantial factor in bringing about the victim’s loss or harm   Fault   is is usually a necessary element of the liability equation because, ethically, we find it hard to fault another unless his conduct was somehow culpable conduct which creates an unreasonable or unacceptable risk of harm   Fault is fault  –  – conduct which falls outside accepted community standards   A common element of tort liability is fault  of behavior intentionally harms  harms another, or that he knows (presumed) that his conduct creates a  Clearly, if one intentionally substantial certainty of harm, liability naturally follows  Motive (actual  (actual or inferred) can be an element of fault  of  fault    Motive   Fault also includes conduct where no harm was intended, but where an ordinary person should have  

 foreseen  foreseen that such conduct created an unreasonable unreasonable risk  risk to others (recklessness and negligence); ergo,  fault may that lie in merely creating an unnecessary or unreasonable risk, however unknowingly  Contributory Fault the tort award to a victim is reduced or even denied when he has consented to encounter the risk or when his own fault contributed to his injury  HOWEVER, various kinds of blameworthy conduct (with fault) that results to damage do not always give rise to tort liability; fault without liability (e.g. causing harm to another in the performance of  a duty, exercise of a privilege or immunity) In the reverse, some conduct could be morally blameless (without fault) but the same still gives rise to tort liability simply because the such conduct should bear the cost of the damage it created

Fault Substitutes 1. Economic Economic Efficienc Efficiency y – where an activi activity ty creates creates harms, harms, the costs costs of that that harm sho should uld be made made part of  the cost-price structure of that activity; relative capacity of parties to absorb or spread costs (insurance) 2. Vicarious Vicarious Liabilit Liability y – where one is liable, liable, in the absence absence of any fault on his his part, for a tort committe committed d by  who is acting on hisabehalf withconduct hisduct express or implied (employees, etc) 3. another Economic Economic Benefit Benefi t – where defendant’s defendor ant’s con causes causes a direct direct permission pecuniary pecuniary loss to a vic victim tim but there iiss also a direct pecuniary gain to defendant

Of Law-Imposed Duties…  Tort can be described as a “civil wrong” wherein one person’s conduct causes a compensable injury to the person, property, or interest of another, in violation of a duty imposed by law   HOWEVER, not all violations of legal duties are torts!  Illus Illustrati tration: on: Breach of contract contract under the above definition definition becomes indistinguish indistinguishable able from a tort  because the binding effect of a contractual obligation is imposed by law. To exclude breach of contract from fro m tort, tort, on the fli flipsi pside, de, negate negatess the fact fact that that breach breach of contra contractu ctual al obl obliga igatio tions ns under under certai certain n circumstances can be a basis for tort liability! 2.2 Functions/Goals and Justifications of Tort Law  1) COMPE COMPENS NSAT ATIO ION N  The victim of a tortious conduct by another has sustained some injury/harm (hereafter called COSTS) and at the heart of tort law is to relieve of said victim from such costs  Tort law is predicated on the idea that all costs –whether tangible or not– can be measured by money 


 

In fact, tort remedy, almost exclusively, comes in the form of compelling the tortfeasor to pay his victim the sum of all costs (compensatory damages) But,, why compel But compel anothe anotherr to compen compensat satee the victim victim for these costs costs when more more efficie efficient nt way wayss of  compensatio compen sation n (e.g. insurance) insurance) can instead be mandated? mandated?  Surely, it’s not prosaically to relieve the  victim of the burden of his costs. Rather, Rather, it is the pursuit of justice!

2) JUST JUSTIC ICE E  Inclu Includes des the notions notions of  fairness; fundamentally, justice is the application of overriding community  standards of fairness b alance of fairness f airness would dictate that it will not be b e just to let the   Where a risk is created by nature, the balance  victim sustain her own losses; instead, the best (most just) way would be to relieve such a victim of the risk by distributing the same to everyone (by insurance or governmental compensation) identify a particular particular person as responsible responsible for creating creating the risk; (b) such risk is  BUT, where (a) we can identify not inconsequential (avoidable/foreseeable); and (c) the tortfeasor is theoretically capable of reducing, nay, eliminating such risk and its consequences  the balance of fairness would tilt and now it becomes  just to  just  to impose the costs on the tortfeasor than to let it remain with the victim or be shared by the community (ergo, tort liability)  On contributory fault  prevailing notions of justice frown against reducing or denying tort awards to a  victim when he has contributory fault that resulted to the harm because the victim’s fault is only a portion of the total loss-producing fault (it does not, at all times, negate/supersede the fault of others); the more prudent approach is to compare all parties’ fault in the loss-producing event and reduce damages in proportion to his own contributory fault 3) PREVEN PREVENTIO TION N OF FUTURE FUTURE COSTS (DETE (DETERRE RRENCE NCE))   Adjunct of tort law’s purpose to regulate human behavior damages)  In theory, a tortfeasor who has been previously held liable for a tort (by way of punitive damages) should be more careful in the future  The threat of tort liability is an incentive to all to regulate their conduct in accordance with established standards 4) OTHER OTHER JUST JUSTIF IFIC ICAT ATIO IONS NS   Vindication of the victim; deters personal retaliation or resort to violent self-help remedies for a perceived wrong 2.3 Evolution Evolution of Tort Concepts and Remedies Remedies 

In English (Common) Law  Originally, the law did not differentiate between Crime Crime and  and Tort   when one causes o injury/harm to another, the remedy was a “private war” or feud in retaliation retaliation,, the intention  being to cause an equivalent harm to the wrongdoer wrongdoer  As government became more settled and centralized, the law began to intervene intervene in these o disputes Some form of “trial” (by ordeal or oaths) was soon required instead of the private wars o If plaintiff won, the defendant had to pay some fixed sum to the former and to the king o computed on the basis of the plaintiff’s value (or his property’s) and the nature of the injury; if defendants could not pay, he would be punished  Anglo-Saxon courts were tribal  and  and applied only local customary laws o o  After the Norman Conquest, royal courts (king’s (king’s courts) courts) were created and took jurisdiction over “specified “specified wrongs” wrongs” (primarily felonies which breach the king’s peace); peace); local courts continued to hear misdemeanors (petty/minor wrongs) o Much later in English legal history, the king’s business was mainly accomplished by royal  writs,, and this included judicial administration  writs

 Writ System o Primitive juridical writs contained mere commands to local courts to do justice between certain parties so that the king will hear no further complaints about their dispute


o o



Later, such writs became grants of jurisdiction to jurisdiction to royal courts to adjudicate certain cases Gradually, a formal writ system evolved and it became it became necessary for a plaintiff to purchase an appropriate writ from the king’s chancellor in order to commence action Much later still, writs still, writs became crystallized in certain forms and contents, corresponding to certain available actions  actions   such that if a plaintiff could not fit his case into the prescribed writs, he had no action at all In the 15th century, actions can be commenced by bill (complaint) instead of the royal writ but plaintiff’s declaration still had to state a cause of action in the recognized form and content provided in royal writs he could have availed of 

Trespa Tre spass ss the most important personal civil action; plaintiff could recover damages even though he could o not prove actual damages it was used in a variety of cases where one person had harmed another o the plaintiff can recover his actual damages, rather than a fixed scheme of compensation o it was also quasi-criminal   because because a defeated defendant is usually imprisoned or fined o the writ of trespass became immensely popular, there had been very few appeals to the king’s o court it provided remedy for a number of lesser harms before the royal courts, which previously could o only be addressed to the ineffective local courts three common writs under trespass o trespass vi et armis  (with force and arms) for assault and battery, and false  imprisonment  trespass de bonis asportatis  (takin (ta king g of goods) good s) for trespass to chattels trespass quare clausum fregit    (breach (brea ch of the “close”) for trespass to land 

CASE and an d other Later Writs there developed writs for wrongs which did not fit with the abovementioned  known as o trespass on the case or action on the case these were developed in flexible terms, but the plaintiff had to set forth the facts of his particular o case in considerable detail this later became a distinct writ  of  of its own, apart from trespass known as CASE o o other writs later emerged as distinct writs writs on  on account of recurring CASE actions and crystallized and separated into named actions having rules of their own CASE was the general form of action under which most other torts evolved o   Assumpsit   remedy for breach of contract/promise (to provide service with care and

skill butofinstead damaged the in plaintiff orand his property); gradually, , this became means enforcing contracts general, later still, itgradually ultimately became an as a independent contract action although action although it can still be an alternative remedy for a tort (particularly misfeasance misfeasance as  as opposed to total failure to perform)  Deceit   concerned abuses of legal procedure, i.e. fraud of the courts; later, as assumpsit developed, it became a CASE action for breach of an express warranty (as the law on sales became consolidated) Trover   developed as a remedy for conversion and damage to chattels in cases where replevin or trespass de bonis asportatis did asportatis  did not apply or where these remedies were inadequate  Nuisance, defamation, defamation, interference interference with economic relations, malicious malicious  prosecution,, strict liability  prosecution liability + Neg Negligence ligence DIFFERENCE


Trin esjury pry asis s direct and 1. Appli Applica cabl blee when when inju immediate 2. No ne need ed of pr proo ooff of of actual damages 3. Proof Proof of defen defendan dant’s t’s faul faultt not requ require ired d

asis e indirect and 1. Reme Remedy dy when when harm haC rm consequential  2. Proof of actual damages is required 3. Proof Proof of of def defend endant ant’s ’s fault fault is is requir required ed


Of the Court System…  Early English courts were too many and each has a jealously guarded jurisdiction  Royal courts (from which common law is derived) had very limited jurisdiction  only matters which pertained to the king’s peace where cognizable  Royal courts only entertained action for trespass when there is an allegation that it involved a breach of the king’s peace Otherwise stated, the royal court only heard tort cases that involve serious civil wrongs and on o matters involving trying of title to land, which were often the subject of trespass actions o Eventually, it was established that the essence of trespass was that defendant had committed some affirmative act which caused a direct and immediate injury to the plaintiff 

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