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基础法律英语(6): 侵权

(2009-05-03 19:59:45)
标签:

民事侵权

教育

分类: 英语语言

Torts 侵权

 

Words and expressions:

 

  • Tort:侵权,侵权行为。在普通法系中,该术语表示可以引起民事诉讼的伤害或不法行为,也指关于此种不法行为所引起的民事责任的法律部门。
  • Civil wrong: 民事过错行为。指违反法律义务,被认为导致损害赔偿请求权产生的致害行为;因此不同于违反法定义务构成刑事处罚责任的犯罪行为。
  • Tortfeasor:侵权责任人
  • Slander:诽谤,诋毁
  • Libel: 诽谤,侮辱
  • Maliciously:蓄意地,故意地
  • Willfully:故意地
  • Trespass:非法侵入私人土地
  • Recklessly:不顾后果地,鲁莽地
  • Negligence:过失
  • Recover:获得赔偿,挽回,胜诉
  • To be back out (of):收回(承担的责任,诺言)
  • Chief justice:首席法官
  • Fellow-servant rule: 共同雇员原则,亦称fellow-servant, doctrine of common employment,根据该原则,雇主虽然要对由于自己的过错而对其雇员造成的损害负责,但如果雇员所受的伤害是由从事共同工作的另一雇员的过错造成的,雇主则不承担责任。这一原则最初由普里斯特利诉福勒一案(Priestly v. Fowler 1837, 3M.&W.)所创立,但受到立法和判例的限制。1948年这一原则被取消。
  • Reasonable man: 法律上指讲道理的人,注意避免产生过失责任的人,一种拟制的人,其预见力,注意力,对伤害的谨慎防范及对伤害的觉察能力等的假想特性和行为常被用作判断具体被告人的实际预见力和注意力等的考核标准。

 

Passage:

 

Tort law is usually described as the law of “civil wrongs”, and it is hard to give a more exact definition. I commit a tort if I hit somebody accidentally but carelessly (with my fists or may car); if I falsely call someone a thief or put this in writing (slander and libel); if I have somebody maliciously arrested, or invade somebody’s privacy or trespass on someone’s land without permission.

 

This is more of less ragbag collection of behaviors, which have little in common except that they are all defined as wrong and do not grow out of a contractual relationship between victim and “tortfeasor”. They are also “civil” wrongs, which means they are not crimes (at least not necessarily). If I wander onto somebody’s land by mistake and trample on something valuable, I may have to pay; but I have not committed a crime and I will not go to jail. It is not a crime for me to back out of a parking space and dent somebody else’s fender, unless I did it willfully and recklessly. But of course I have to pay. Some torts are crimes, especially if the behavior is reckless or malicious. The ordinary tort is not.

 

A tort is conduct which causes injury and doesn’t measure up to some standard which society has set. The heart of tort law is the action for personal injury – a claim against a person or company for hurting my body in some way. Probably 95 percent of all tort claims are for personal injury. Auto accidents, nowadays, are responsible for most of them. Formerly, railroad and work accidents were the most prolific sources. Indeed, the law of torts was insignificant before the railroad age of the nineteenth century – and no wonder. This branch of law deals above all with the wrenching, grinding effects of machines on human bodies. It belongs to the world of factories, railroads, and mines – in other words, the world of the Industrial Revolution.

 

Basically, then, the railroad created the law of torts. Not a single treatise on the law of torts was published before 1850, either in England or the United States. Early tort cases often came up out of railroad accidents. Nicholas Farwell, who worked for the Boston and Worcester Railroad, lost his hand in a switchyard accident, sued the railroad, and got nothing; but “Farwell v. Boston & Worcester Rr. Corp.” made legal history. In this case, the chief justice of Massachusetts, Lemuel Shaw, announced the American version of the “fellow-servant” rule. Under this rule, an employee could not sue his company for work injuries if the accident was caused by the carelessness of a coworker (a fellow-servant). This was, of course, the usual situation in a factory or mine or on the railroad. Hence the rule protected employers against almost all claims of injured workmen.

 

Despite the rule, industrial accidents in which workers like Farwell were mangled by machines were the most fertile source of tort cases in the nineteenth century. In the twentieth century, the fellow-servant rule was replaced by an administrative system – workmen’s compensation – and the auto accident moved to center stage. Lately, two subfields of the law of torts have grown rapidly: medical malpractice and products liability (injuries caused by defective foods, toys applicances, drugs, or other commodities). Thest two categories, however, make a noise in society; the rise medical malpractice cases generated a sense of crisis in the profession and led to reform efforts in many states, including attempts to put a ceiling on the amount that plaintiffs can recover from doctors and hospitals.

 

A fundamental concept of tort law is “negligence”. This means, roughly, carelessness. Basically, if somebody causes me harm, I can sue him for damages only if he was negligent. He has to to be at fault. If he was as careful as he should have been (as careful as the imaginary “reasonable man” – the yardstick for measuring negligence), then I cannot recover for my injury.

 

Thousands of cases have turned on what does or does not amount to negligence. In the twentieth century, the concept has gone into something of a decline, especially in products liability cases. More and more, courts impose ‘strict liability” – that is, a victim can recover even if there was no negligence and if the manufacturer was as careful as is humanly possible. If a company makes jars of pickles and has good quality control, it can still happen that one jar out of a million is bad, slips through the net, and makes someone sick. The company has not been negligent, in nineteenth-century terms. But modern cases insist that the company must pay.

 

Suplementary reading:

 

Tort

 

Tort law is a body of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations. A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or “liable”, for hose injuries. Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another’s injury. Torts cover intentional acts and accidents. In contract to cirminal law (in which the offense is against the State and the State is the plaintiff), in tort law, the offense is against a person and the that person is the plaintiff.

 

For instance, Alice throws a ball and accidentally hits Brenda in the eye. Brenda may sue Alice for losses occasioned by the accident (e.g., costs of medical treatment, lost income during time off work, and pain and suffering). Whether or not Brenda wins her suit depends on if she can prove Alice engaged in tortious conduct. Here, Brenda would attempt to prove Alice had a duty and failed to exercise the standard of care which a reasonable person would render in throwing the ball.

 

One of the main topics of the substance of tort law is determining the “standard of care” – a legal phrase that means distinguishing between when conduct is or is not tortious. Put another way, the big issue is whether a person suffers the loss from his own injury, or whether it gets transferred to someone else.

 

Returning to the example above, if Alice threw the ball at Brenda purposely, Brenda could sue for the international tort of battery (and the action might also, separately, be a crime against the State). If it was an accident, Brenda prove negligence. To do this, Brenda must show that her injury was reasonably foreseeable, that Alice owned Brenda a duty of care not to hit her with the ball, and that Alice failed to meet the standard of care required.

 

In much of the western world, the touchstone of tort liability is negligence. If the injured cannot prove that the person believed to have caused the injury acted with negligence, at the very least, tort law will not compensate them. Tort law also recognize intentional torts and strict liability, which apply to defendants who engage in certain actions.

 

In tort law, injury is defined broadly. Injury does not just mean a physical injury, such as where Brenda was struck by a ball. Injuries in tort law reflect any invasion of any number of individual “interests.” This includes interests recognized in other areas of law, such as property rights. Actions for nuisance and trespass to land can arise from interfering with rights in real property. Conversion and trespass to chattels can protect interference with movable property. Interests in prospective economic advantages from contracts can also be injured and become the subject of tort actions. A number of situations caused by parties in a contractual relationship may nevertheless be tort rather than contract claims, such as breach of fiduciary duty.

 

Tort law may also be used to compensate for injuries to a number of other individual interests that are not recognized in property or contract law, and are intangible. This includes an interest in freedom from emotional distress, privacy interests, and reputation. These are protected by a number of torts such as infliction, privacy torts, and defamation. Defamation and privacy torts may, for example, allow a celebrity to sue a newspaper for publishing an untrue and harmful statement about him. Other protected interests include freedom of movement, protected by the intentional tort fo false imprisonment.

 

The equivalent of tort in civil law jurisdictions is delict. The law of torts can be categorised as part of the law of obligations, but unlike voluntarily assumed obligations (such as those of contract, or trust), the duties imposed by the law of torts apply to all those subject to the relevant jurisdiction. To behave in “tortious” manner is to harm another’s body, property, or legal rights, or possibly, to breach a duty owned under statute. One who commits a tortious act is called a “tortfeasor”. Torts is one of the American Bar Association mandatory first year law school course.

 

Categories of torts:

 

Torts may be categorised in a number of ways: one such is to divide them into Negligence Torts, and Intentional Torts.

 

The dominant action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to injunctive relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. Negligence actions include claims arising primarily from automobile accidents and personal injury accidents of many kinds, including clinical negligence. Product liability cases may also be considered negligence actions, but there is frequently a significant overlay of additional statutory content.

 

Among intentional torts may be certain torts arising out of the occuption or use of land. One such is the tort of nuisance, which connotes strict liability for a neighbour who interferes with another’s enjoyment of his real property. Trespass allows owners to sue for incursions by a person (or his structure, for example an overhanging building) on their land. There is a tort of false imprisonment, and a tort of defamation, where someone makes an unsupportable allegation represented to be factual which damages the reputation of another.

 

Workers’ compensation laws were a legislative response to the common law torts doctrine placing limits on the extent to which employees could sue their employers in respect of injuries sustained during employment.

 

Negligence:

 

Negligence is a tort which depends on the existence of a breach of duty of care owned by one person to another. One well-known case is Donoghue v. Stevenson where Mrs. Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland and claimed that it had made her ill. The snail was not visible, as the bottle of ginger in which it was contained was opaque. Neither her friend, who bought it for her, nor the shopkeeper who sold it were aware of its presence. The manufactuerer was Mr. Stevenson, whom Mrs. Donoghue sued for damages for negligence. She could not sue Mr. Stevenson for damages for breach of contract because there was no contract between them. The majority of the members of the House of Lords agreed (3-2) that Mrs. Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this should be treated as a new product liability case. Lord Atkin argued that the law should recognize a unifying principle that we owe a duty of reasonable care to our neighbours. He quoted the Bible in support of his argument, specifically the general principle that “thou shalt love thy neighbour.” The elements of negligence are: duty of care; breach of that duty; breach being a proximate or not too remote a cause, in law; breach causing harm in fact.

 

Statutory torts:

 

A statutory tort is like any other, in that it imposes duties on private or public parties, however they are created by the legislature, not the courts. One example is in consumer protection, with the Product Liability Directive in the European Union, where businesses making defective products that harm people must pay for any damage resulting. Liability for defective products is strict in most jurisdictions. The theory of risk spreading provides support for this approach. Since manufacturers are the “cheapest cost avoiders”, because they have a greater chance to seek out problems, it makes sense to give them the incentive to guard against product defects.

 

Another example is the Occupiers’ Liability Acts in the UK where by a person, such as a shopowner, who invites others onto land, or has trespassers, owes a minimum duty fo care for people’s safety. One early case was Cooke v Midland Great Western Railway of Ireland, where Lord MacNaughton felt that children who were hurt whilst looking for berries on a building site, should have some compensation for their unfortunate curiosity. Statutory torts also spread across workplace health and safety laws and health and safety in food produce.

 

The concept of statutory torts is not held throughout all common-law countries, however. Courts in both the United States and Canada have rejected the concept that a statutory duty can be the action.

 

Nuisance:

 

Legally, the term “nuisance” is traditionally used in three ways: (1) to describe an activity or condition that is harmful or annoying to others (e.g., indecent conduct, a rubbish heap or a smoking chimney); (2) to describe the harm caused by the before-mentioned activity or condition (e.g., loud noises or objectionable odors); (3) to describe a legal liability that arises from the  combination of the two. The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (i.e., private nuisance) or with the rights of the general public (i.e., public nuisance).

 

The tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. A good example of this is in the case of Jones v Powell (1629). A brewery made stinking vapors which wafted onto neighbors’ property, damaging his papers. As he was a landowner, the neighbour sued in nuisance for this damage. But Whitelocke J, speaking for the Court of the King’s Bench, said that because the water supply was contaminated, it was better that the neighbor’s documents were risked. He said “it is better that they should be spoiled than that the common wealth stand in need of good liquor.” Nowadays, interfering with neighbours’ property is not looked upon so kindly. Nuisance deals with all kinds of things that spoil a landowner’s enjoyment of his property.

 

A subset of nuisance is known as the rule in Rylands v. Fleccher where a dam burst into a coal mine shaft. So a dangerous escape of some hazard, including water, fire, or animals means strict liability in nuisance. This is subject only to a remoteness cap, familiar form negligence when the event is ususual and unpredictable. This was the case where chemicals from a factory seeped through a floor into the water table, contaminating East Anglia’s reservoirs.

 

Free market environmentalists would like to expand tort damage claims into pollution (i.e. toxic torts) and environmental protection.

 

Defamation:

 

Defamation is tarnishing the reputation of someone; it is in two parts, slander and libel. Slander is spoken defamation and libel is printed and broadcast defamation, both share the same features. Defaming someone entails making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the United States Constitution’s First Amendment, or the European Convention’s Article 10. related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.

 

Intentional torts:

 

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories, including tort(s) against the person, including assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud. Property torts involve any intentional interference with the property rights of the claimant. Those commonly recognized include trespass to land, trespass to chattels, and conversion.

 

Economic torts:

 

Economic torts protect people form interference with their trade or business. The area includes the doctrine of restraint of trade and has largely been submerged in the twentieth century by statutory interventions on collectie labor law and modern antitrust or competition law. The “absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon.”

 

Two cases demonstrated economic tort’s affinity to competition and labor law. In Mogul Steamship Co. Ltd. The plaintiff argued he had been driven from the Chinese tea market by competitors at a “shipping conference” that had acted together to under price his company. But this cartel was ruled lawful and “nothing more than a war of competition waged in the interest of their own trade.” Nowadays, this would be considered a criminal cartel. In labor law the most notable case is Taff Vale Railway v. Amalgamated Society of Railway Servants. The House of Lords thought that unions should be liable in tort for helping workers to go on strike for better pay and conditions. But it riled workers so much that it led to the creation of the British Labour Party and the Trade Disputes Act 1906 Further torts used against unions include conspiracy, interference with a commercial contract or intimidation.

 

Through a recent development in common law, beginning with Hedley Byrne v Heller in 1964 a victim of the tort of negligent misstatement may recover damages for pure economic loss caused by detrimental reliance on the statement. Misrepresentation is a tort as confirmed by Bridge LJ in Howard Marine and Dredging Co. Ltd v A Ogden & Sons.

 

Competition law:

 

Modern competition law is an important method for regulating the conduct of businesses in a market economy. A major subset of statutory torts, it is also called “anti-trust” law, especially in the U.S., articles 81 and 82 of the Treaty of the European Union, as well as the Clayton and Sherman Acts in the U.S., which create duties for undertakings, corporations and businesses not to distort competition in the marketplace. Cartels are forbidden on both sides of the Atlantic. So is the abuse of market power by monopolists, or the substantial lessening of competition through a merger, acquisition, or concentration of enterprises. A huge issue in the EU is whether to follow the U.S. approach of private damages actions to prevent anti-competitive conduct.

 

Vicarious liability:

 

The word “vicarious” derives from the Latin for “change” or “alternation” or “stead” and in tort law refers to the idea of one person being liable for the harm caused by another, because of some legally relaevant relationship. An example might be a parent and a child, or an employer and an employee. You can sue an employer for the damage to you by their employee, which was caused “ in the course of employment.” For example, if a shop employee spilled cleaning liquid on the supermarket floor, one could sue the employee who actually spilled the liquid, or sue the employers. In the aforementioned case, the latter option is more practical as they are more likely to have more money. The law replies “ since your employee harmed the claimant in the course of his employment, you bear responsibility for it, because you have the control to hire and fire him, and reduce the risk of it happening again. “ There is considerable academic debate about whether vicarious liability is justified on on better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation.

 

Defenses:

 

A successful defense absolves the defendant from full or partial liability for damages. Apart from proof that there was no breach of duty, there are three principal defences to tortious liability.

 

Consent: This is Latin for “ to the willing, no injury is done”. It operates when the claimant either expressly or implicitly sonsents to the risk of loss or damage. For example, if a spectator at an ice hockey match is injured when a player strikes the puck in the ordinary course of play, causing it to fly out of the rink and hit him or her, this is a foreseeable event and spectators are assumed to accept that risk of injury when buying a ticket. A slightly more limited defense may arise where the defendant has been giving a warning, whether expressly to the claimant or by a public notice, sign or otherwise, that there is a danger of injury. The extent to which defendants can rely on notices to exclude or limit liability varies from country to country. This is an issue of policy as to whethr (prospective) defendants should not only warn of a known danger, but also take active steps to fence the site and take other reasonable precautions to prevent the known danger from befalling those foreseen to be at risk.

 

Contributory negligence: this is either a mitigatory defense or , in the U.S., it may be an absolute defense. When used as a mitigatory defense, it is often known in the US as comparative negligene. Under comparative negligence a plaintiff/claimant’s award is reduced by the percentage of contribution made by the plaintiff to the loss or damage suffered. Thus, in uating a collision between two vehicles, the court must not only make a finding that both drivers were negligent, but it must also apportion the contribution made by each driver as a percentage, e.g., that the blame between the drivers is 20% attributable to the palintiff/claimant: 80% to the defendant. The court will then quantify the damages for the actual loss or damage sustained, and then reduce the amount paid to the plaintiff/claimant by 20%. While contributory negligence retains a significant role, an increasing number of jurisdictions, particularly within the US, are evolving toward a regime of comparative negligence. All but four US states now follow a statutorily created regime of comparative negligence.

 

Contributory negligence has been widely criticized as being too draconian, in that a plaintiff whose fault was comparatively minor might recover nothing from a more egregiously irresponsible defendant. Comparatie negligence has also been criticized, since it would allow a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant, and often more than a jury is feeling sympathetic. Economists have further criticized comparative negligence, since under the Learned hand Rule it will not yield optimal precaution levels.

 

Illegality: Ex turpi causa non oritur actio is the illegality defence, the Latin for “ no right of action arises from a despicable cause”. If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant’s liability. Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story windows to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained “but for” the property owner’s intervention.

 

Remedies:

 

The main remedy against tortious loss is compensation in “damages” or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defense against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threated, the court will sometimes grant an injunction. This means a commend, for something other than money by the court, such as restraining the continuance or threat of harm. Usually injunctions will not impose positive obligations on tortfeasors, but some Australian jurisdiction can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters.

 

Theory and reform:

 

Shcolars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated and punitive. In The Aims of the Law of Tort (1951), Glaville Williams saw four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.

 

From the late 1950s a group of legally oriented economists and economically oriented lawyers emphasized incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. They are often described as the Law and economics movement. Ronald Coase, one of the movement’s principal proponents, submitted, in his article The Problem of Social Cost (1960), that the aim of tort should be to reflect as closely as possible liability where transaction costs should be minimized.

 

Calls for reform of tort law come from diverse standpoints reflecting diverse theories of the objectives of the law. Some calls for reform stress the difficulties encountered by potential claimants. Because of all people who have accidents, only some can find solvent defendants from which to recover damages in the courts, P.S.Atiyah has called the situation a “damages lottery”. Consequently, in New Zealand, the government in the 1960s established a “no-fault” system of state compensation for accidents. Similar proposals have been the subject of Command Papers in the UK and much academic debate.

 

However, in the US calls for reform have tended to be for drastic limitation on the scope of tort law, a minimisation process on the lines of economic analysis. Anti-trust damages have come under special scrunity, and many people believe the availability of punitive damages generally are a strain on the legal system.

 

Theoretical and policy considerations are central to fixing liability for pure economic loss and of public bodies.

 

Overlap with criminal law:

There is some overlap between criminal law and tort, since tort, a private action, ussed to be used more than criminal laws in the past. For example, in England law an assault is both a crime and a tort ( a form of trespass to the person). A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of damages to a person injured in a car accident, or the obtaining of injunctive relief to stop a person interfering with their business). Criminal actions on the other hand are pursued not to obtain remedies to assist a person – although often criminal courts do have some power to grant such remedies – but to remove their liberty on the state’s behalf. That explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts.

 

The more severe penalties available in criminal law also means that it requires a higher burden of proof to be discharged than the related tort. For example, in the O.J.Simpson murder trial, the jury were not convinced “beyond reasonable doubt” that O.J.Simpson had committed the crime of murder, but a latter civil trial, the jury in that case felt that he did satisfy the balance of probabilities threshold to prove the tort of wrongful death.

 

Many jurisdictions, especially the US, retain punitive elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with criminal acts. Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment. Some torts may have a public element – for example, public nuisance – and sometimes actions in torts will be brought by a public body. Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restriction which criminal courts can directly order the defendant to pay the victim.

 

Tort by legal jurisdiction:

 

Legal jurisdictions whose legal system developed from the English common law have te concept of tortious liability. There are technical differences from one jurisdiction to the next in proving the various torts. For the issue of foreign elements in tort see Tort and Conflict of Laws.

 

In addition, other legal systems have concepts comparable to torts. See, for instance, the rabbinic category of Damages (Jewish law).

 

(完)

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