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Post No.: 0199tort


Furrywisepuppy says:


Again, it’s tricky and maybe foolhardy trying to generalise legal topics that may come with various local differences depending on a country or state’s particular laws, but bearing this in mind…


Tort law, or tortious liability, is an area of private law regarding civil wrongs such as acts of negligence or unintentional carelessness, libel or slander (defamation), assault (mental harm or threats that could’ve been reasonably interpreted as a precursor to actual physical harm), battery (non-consented, actual physical contact whether it caused an injury or not), harassment, trespassing (of land, goods or persons even if no loss or injury occurred), obstruction of freedom, false imprisonment (without a reasonable chance of escape), excessively noisy neighbours, passing off goods as someone else’s, and other types of civil wrongs that cause harm to or interferes with another person’s safety, security, reputation, property or financial interests. Woof!


Basically, a plaintiff or claimant (the party who initiates the prosecution) sues another party, the defendant (the party who has been accused), for damages (compensation, which may come in the form of material (e.g. for lost income), moral (e.g. for the mental anguish) and/or punitive (to deter the repetition of the wrongful act) reparations) in order to put the plaintiff back in a position that they would’ve been in had they not been harmed by the defendant – at least in financial terms. Most lawsuits settle before they go to trial.


We therefore mutually owe each other a duty of care and a minimum standard of care in the community even when we don’t have a pre-arranged agreed contract with each other or any prior relationship with each other – we cannot just say or do, or neglect to do, whatever we want to say or do, or neglect to do, to each other or to each other’s property (the ‘neighbour principle’). We must do what a ‘reasonable person’ would’ve done at the time. (Be advised too that trespass, bodily contact or false imprisonment can occur even without the victim being conscious of it e.g. if they were asleep.)


Indeed in specific cases there may be a lot of debate about what a ‘reasonable person’ would do. Decisions of ‘reasonableness’ are based on the probabilities or foresee-ability of the harm occurring (how likely something was going to go wrong), as well as the gravity of the harm (how much harm was actually done), the social utility of the activity that the defendant was undertaking at the time (e.g. they broke your sternum but it was only because they were administering lifesaving cardiopulmonary resuscitation (CPR) to you), and the practicality of the defendant taking precautions against the risk that has caused harm (e.g. whether they had plenty of opportunity to check the timetables or weather but didn’t). Any loss cannot be too causally remote from the breach of care too (e.g. eating something from a restaurant that made your fuzzy stomach ache an hour later compared to a couple of days later).


Tort law kind of fits in right between Criminal law (public law offences – see Post No.: 0172) in that no pre-agreed contract is required before it comes into force, and Contract law (privately agreed legally-binding agreements) in that it’s brought by individuals rather than by the state. Furthermore, sometimes Tort law overlaps with Criminal law such as when it comes to offences like theft or physical harm, and sometimes it overlaps with Contract law such as regarding the misrepresentation of goods or services sold.


Tort law is probably one of the most fluid areas of law since what’s considered ‘an ordinary course of action’ or ‘reasonable’ can change with changing cultures and times, and there are also cultural trends (e.g. repetitive strain injury claims from the workplace, tobacco smoke harm claims, whether the corporal punishment of children by adults is considered a tort or not, and what is deemed as sexual harassment or mere flirting).


Consent is a major factor to consider in tort cases, so be careful when signing any waivers or consent forms – note or remember that you can negotiate them, cross out any terms you disagree with and initial them to see if the other party will accept these amendments, or otherwise walk away. Some consent is implied in certain contexts though (e.g. physical contact in boxing, as long as it’s within the rules of boxing) so context can be key, as well as the role of the persons involved at the time (e.g. a doctor giving bad medical advice to a patient is worse than a non-medical friend giving bad medical advice to them).


One of the dangers about learning just a little bit about tortious liability is that it can make you hesitant about doing anything, such as volunteering to help someone or organising something for others, just in case you’ll get sued if something goes wrong! But the law isn’t there to punish those who try their best. If you can prove you’ve been reasonable because you’ve taken reasonable steps to care for the welfare of others and didn’t neglect them then you should be fine. These tort laws aim to raise the standards of citizens to at least ‘reasonable persons’ and uphold a civil society. So don’t worry about helping those in need (e.g. helping to save a person from drowning even though they never consented to you touching them or maybe even if they’re unconscious in the water), but maybe one shouldn’t agree to do something unless one is going to put in a reasonable amount of care to do it right. And it should be needless to say that one really shouldn’t selfishly or inconsiderately do things that could harm or trespass on others (e.g. don’t grope people or even say sleazy things at all).


When one understands that tort could be claimed if something goes wrong and someone is at least partly responsible, regardless of their level of expertise in doing something or whether they are getting paid to do it or not – it can, on the one paw, make us more cautious about helping others, as stated above. But on another paw it could be said that this all improves due diligence, incentivises the reduction of putting others at risk, upholds the maintenance of high minimum standards of care from others, improves competence and the keeping-up-to-date with current best practices if we all exercise our rights to their fullest and let no one profit or get away with committing wrongs. Alternatively, on yet another paw (I have up to four paws available!) it could be said to promote more litigation in society, more blame-passing, it gives those who have more money and can afford better or more lawyers to bring litigation against others in the first place even more advantages in life (especially in places where legal aid is inadequate) and increases the prolific use of consent, waiver, confidentiality or non-disclosure agreements or clauses to protect a firm or individual’s own skin! (So be aware of firms that make you agree to quite extensive terms and conditions because they might be more concerned about protecting their own behinds than giving you a high standard of care.)


But ultimately, if you think you’ve been wronged by another party – before considering suing them, especially for something relatively trivial – remember that we have to get along with our neighbours, and being polite, forgiving and accepting that accidents do happen is more sensible for our long-term interests than always claiming our strict legal rights. And really – achieving a harmonious community is the overall spirit and objective of Tort law.


Woof. This has been just a very broad and brief introduction to Tort law and does not constitute legal advice (spot the disclaimer!) If you want to explore more on the subject then I recommend taking a formal educational course, and if you believe you have a personal case to claim then please consult someone more qualified to give you advice in your particular area of jurisdiction. And most of all – look after each other!


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