JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(6) Law

law

Tort

  Torts (or delicts, as they are called in Continental legal systems) are civil wrongs; they include injuries to my person, property, reputation, privacy, even my peace of mind. Like the law of contract, the law of tort provides victims (or ‘plaintiffs’) with the right to obtain compensation for their loss. Unlike contract, however, which has as its principal goal the keeping of promises, tort law protects a wide range of interests. The law provides remedies, pre-emptive and compensatory, for conduct that causes harm either intentionally or negligently.

The latter have become the principal focus of modern tort law. Accidents will happen, but where they are the consequence of your negligence, I may be able to recover damages to recompense my loss. So, for example, should you run me over in your car, and I can prove that you were driving negligently, I may be awarded damages to cover the cost of my hospital treatment, the money I lost through being away from work, and my pain and suffering.

To succeed, the plaintiff normally has to prove that the wrong was done intentionally or negligently. Most torts are actionable only when they have caused actual injury or damage, though certain torts whose principal purpose is to protect rights rather than to compensate for damage (such as trespass) are actionable without proof of damage. The defendant (known also as the tortfeasor in common law systems) is normally the person who is primarily liable, though according to the rules of vicarious liability, one

person (e.g., an employer) may be held liable for a tort committed by another person (e.g., an employee).

Torts are sometimes also breaches of contract. For example, the negligent driver of a bus who causes injury to his passengers has committed both the tort of negligence and a breach of the contract to carry the passengers safely to their destinations. They may recover damages either in tort or for breach of contract, or both.

The bus driver may also have committed a crime (e.g., dangerous driving). While the protection of the interests in property and bodily security are reasonably straightforward, the courts of many jurisdictions have encountered difficulties when it comes to compensating victims whose loss is not physical, but either purely economic or emotional. Suppose, as occurred in an English case, the defendants negligently damage an electrical cable while carrying out construction work near the plaintiff’s factory. As a result, the production is severely harmed and the plaintiff suffers financial loss. The physical loss (the damage to the materials) was clearly recoverable, but since the cable was not the plaintiff’s property the loss was ‘purely economic’. Can he recoup it? The common law, after some twists and turns by English courts, answers in the negative. The fear seems to be that allowing recovery will open the floodgates of litigation, a frequent concern expressed by judges, especially in England. In France, on the other hand, no distinction is drawn between physical and economic loss.

Comparable judicial trepidation attends the question of emotional distress. Where the injury consists of psychiatric illness as a result of physical harm, the courts look for some degree of ‘proximity’ between the plaintiff and the victim. The complexity of this calculation is tragically illustrated by a House of Lords decision in 1992. A crush in a sports stadium resulted in the death of 95 football fans, and more than 400 were injured. The police acknowledged their negligence in allowing too many spectators into an already overcrowded ground. The match was to have been televised live. In the event, vivid images of the disaster were broadcast. The disturbing pictures were seen by some of the plaintiffs who knew that their friends or family were present in the stadium. Two of the plaintiffs were spectators in the ground, but not in the stands where the disaster occurred; the other plaintiffs learned of the disaster through radio or television broadcasts.

All the plaintiffs lost, or feared they might have lost, a relative or friend in the calamity. They failed in their claim for compensation for emotional distress because they did not satisfy one or other of the control mechanisms used by the law when damages for psychiatric injury are claimed by plaintiffs who were not directly threatened by the accident but learned of it through sight or hearing. These limiting factors are:

 

1. There must be a close tie of love and affection between the plaintiff and the victim.

2. The plaintiff must have been present at the accident or its immediate aftermath.

3. The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not by hearing about it from somebody else.

 

This requirement of ‘proximity’, as well as the other tests, have attracted considerable criticism, and calls for reform of the law in some jurisdictions. Problems also arise in circumstances where the injury falls short of a recognized mental affliction, and consists of the grief and distress that normally attends the loss of or injury to a loved one.

 

The law of tort not only attempts to recompense victims, it seeks also to deter persons from engaging in conduct that may injure others. Furthermore, it is said to ‘shift’ or ‘distribute’ the losses incurred in the case of negligent injury. To put the matter simply, where you are at fault in causing my injury, the law shifts the loss to you. Why should I have to bear the loss that you have negligently caused? You will see at once that this apparently facile question conceals a host of difficult issues about the nature of negligence: what is ‘fault’, what constitutes a ‘cause’, and so on. In the modern world dominated by insurance, the issue tends to alter from blame to burden: instead of asking ‘who is at fault?’ the question becomes ‘who can best bear the cost?’ And the answer is often the insurance company, with whom there is normally a compulsory liability insurance policy.

The common law of torts is a veritable cornucopia of wrongs, including trespass to land, trespass to person (which includes assault and battery), nuisance, defamation, breach of statutory duty, and strict liability. But, as mentioned, in practice they are eclipsed by the tort of negligence, which is based on the fault principle. The plaintiff must prove that the defendant owed him a duty of care which was breached by his failure to live up to the standard of ‘the reasonable man’, thereby causing the plaintiff injury or damage.

Each of these three elements requires brief elaboration. The duty of care was vividly encapsulated in one of the most celebrated judicial pronouncements in all of the common law. In the landmark case of Donoghue v Stevenson, Mrs. Donoghue complained of finding a snail in a ginger beer bottle, but the judgment was considerably more portentous. The precise facts of the case have never been clearly established, but it appears that Mrs. Donoghue accompanied her friend to a café in the Scottish town of Paisley. Her friend ordered drinks. The café owner poured some of the contents of a bottle of ginger beer into a glass containing ice cream. Mrs. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the glass. Allegedly, a decomposed snail floated out of the bottle into the glass. Mrs. Donoghue subsequently complained of stomach pain, and her doctor diagnosed her as having gastro-enteritis. She also claimed to have suffered emotional distress as a result of the incident. The law of tort did not then permit her to sue the café owner. Nevertheless, the House of Lords held that a plaintiff in the position of Mrs. Donoghue was owed a duty of care by a manufacturer like Stevenson who had made the ginger beer. Drawing on the biblical injunction that one has a duty to love one’s neighbor, Lord Atkin famously declared: The rule that you are to love your neighbor becomes in law you must not injure your neighbor; and the lawyer’s question: Who is my neighbor? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.

In other words, you owe a duty to persons whom it is foreseeable are likely to be harmed by your conduct. The standard of care is therefore an objective one: you are judged by reference to the reasonable man. Thus, for example, an English court held that the standard of care expected of a learner driver was the same as any other driver of a motor vehicle. Finally, as a matter of fact the defendant must cause the plaintiff’s loss. The question of causation has exercised the mind of many a common law judge; concepts such as ‘remoteness of damage’ and ‘proximate cause’ seem frequently to obscure what is ultimately a policy decision by the court as to what it considers to be fair or in the best interests of society.

The reasonable man – the hypothetical person against whom a defendant’s conduct is measured – is often described as ‘the manon the Clapham omnibus’, though in an examination, one of students preferred ‘the man on the clapped-out omnibus’.

 

The reasonable man

 

[He is] devoid of any human weakness, with not one single saving vice, sans prejudice, procrastination, ill-nature, avarice, and absence of mind, as careful for his own safety as he is for that of others, this excellent but odious character stands like a monument in our courts of justice, vainly appealing to his fellow citizens to order their lives after his own example.

A. P. Herbert, Uncommon Law (Methuen, 1969), p. 4

 

 

A similar approach is evident in the equally legendary American case of Macpherson v Buick Motor Co. in which Justice Cardozo held that where a manufacturer negligently produces a defective car that injures the person who purchased it from the dealer, the manufacturer is liable to that person despite the absence of a contract between them and the person injured.

The plaintiff in a negligence action is required to prove that the defendant’s conduct actually caused his injury or damage. It is often the case, however, that the relationship between cause and effect is too remote. This question has proved remarkably complex and has generated a vast body of case law, especially in England. It is not always clear whether in order to be held liable the defendant must reasonably foresee the precise type of damage that results from his negligence. Nor is it certain that he will be held responsible for damage that is more extensive or that occurs in an atypical manner. The courts tend, on the whole, to decide these intractable cases on policy grounds.

 

The Learned Hand negligence formula

 

In 1947, Judge Learned Hand of the US Court of Appeals expounded the following algebraic solution to the question of how far a defendant needs to go to avoid an accident:

B < p × L

B = the burden of precautions required to avoid the accident.

p = the probability that the accident will occur unless the precautions are taken.

L = the magnitude of the loss that will result if the accident occurs.

There is negligence when the actor’s burden (B) is less than the probability (p) of harm, multiplied by the degree of loss (L). In other words, if the cost of the precautions is lower than the cost of the accident, the defendant is negligent.

 

To the plaintiff’s claim that the defendant negligently caused his loss, the defendant may raise a number of defences, including that the plaintiff voluntarily accepted the risk by, say, accepting a lift from a seriously drunk driver. Or the defendant might argue that the plaintiff was himself negligent and therefore contributed to his injury by failing to notice that the driver was dangerously inebriated.

Certain special circumstances may, however, dictate that a defendant be held responsible regardless of whether he or she is at fault. This is known as ‘strict liability’. The protection of public health or safety militates against the fault principle, especially where the defendant is engaged in an inherently dangerous activity such as the use of explosives. Liability is often perceived as the price to be paid in return for the profits made by large corporations that indulge in potentially harmful activities.

The French Civil Code is fairly sweeping in this respect. It imposes strict liability for the things ‘which one has under one’s control’. A ‘thing’ includes any corporeal object whether it consists of a gas, a fluid, electric cables, or radioactive materials. Motor vehicles are things. Italian law renders the driver of a vehicle strictly liable, unless he did everything possible to avoid the accident. The German law imposes strict liability on the driver of a vehicle who causes bodily injury or property damage, as well as on railway, gas, and electricity companies. The Anglo-American law finds the concept of strict liability less congenial, though under the so-called ‘rule in Rylands v Fletcher’ a defendant who brings onto his land a source of danger is strictly liable should it ‘escape’ and cause damage. The rule has been applied, amongst other hazards, to fi re, gas, water, chemicals, fumes, electricity, and explosions. Strict liability may also arise under statute for harm caused by animals. An employer may also be held strictly liable for the acts of an employee in the course of his employment (‘vicarious liability’).

The difficulty of proving negligence by manufacturers has led to the considerable growth, especially in the United States, of a form of strict liability known as ‘products liability’. The consumer is rarely able to check whether the car he buys is free of defects. The law therefore provides that if a product is defective at the time the defendant put it into circulation, the plaintiff need not prove negligence.

 

 

Product liabilty: the ‘McDonald’s Coffee Case’

 

This decision is frequently derided as an example of frivolous litigation that demeans the law of negligence. The facts may suggest otherwise.

A 79-year-old woman, Stella Liebeck, ordered a cup of coffee from a ‘drive-through’ McDonald’s restaurant. She was in the passenger’s seat. Her grandson parked the car in order that she could add cream and sugar to her coffee. She placed the coffee cup between her knees and pulled the far side of the lid towards her to remove it. In the process, she spilled the entire cup of coffee on her lap, causing her third-degree burns that required a skin graft and two years of follow-up treatment.

She sued McDonald’s for gross negligence, claiming that they had sold coffee that was ‘unreasonably dangerous’ and ‘defectively manufactured’. She adduced evidence

that McDonald’s required its restaurants to serve coffee at 82–88 degrees Celsius (which would cause a third-degree burn in 2 to 7 seconds), and argued that that the maximum temperature at which coffee should be served is 60 degrees Celsius. McDonald’s very hot coffee, it was claimed, could cause third-degree burns requiring a skin graft, in 12 to 15 seconds. McDonald’s argued that it dispensed very hot coffee

from its drive-through windows, because customers normally wanted to drive away with the coffee; the high temperature would ensure it stayed hot.

The evidence demonstrated that between 1982 and 1992 the company had received more than 700 complaints of customers being burned by hot coffee. It had settled claims arising from scalding injuries for more than $500,000, or one complaint per 24 million cups of coffee bought. The jury found McDonald’s 80% liable for the incident and Mrs. Liebeck, 20% liable. The coffee cup contained a warning, but the jury decided that it was inadequate. It awarded her damages of US$200,000, which was subsequently reduced by 20% to $160,000. In addition, the jury awarded her $2.7 million in punitive damages (to punish McDonald’s). This latter sum was reduced by the judge to $480,000. She thus received a total of $640,000. The decision was appealed by both parties, but the case was eventually settled out of court for an undisclosed amount under $600,000.

 

 

Another recent, predominantly American, development is the emergence of so-called ‘mass torts’. These are lawsuits launched by a large number of plaintiffs (‘class actions’) associated with a single product. They include product liability claims against, for example, tobacco companies, for lung cancer caused by smoking, injuries caused by breast implants, and large-scale, ‘man-made’ disasters, such as aero plane crashes and explosions at chemical plants.

The cost, delays, and injustices of the fault principle have generated deep dissatisfaction with the tort system of compensating accident victims. This has become so widespread and pervasive that cynicism greets the attempts by the rapidly declining number of fault-based stalwarts who attempt to defend its continuation. The only members of society who profit from the system, it is charged, are the lawyers. Some jurisdictions (notably New Zealand and Quebec) have introduced comprehensive systems of no-fault insurance under which the law of tort is abolished for personal injury caused by accident. Victims of accidents are compensated from special funds created for this purpose. Detractors question the consequence of this munificence on the deterrent effect of a fault-based system, though it is widely acknowledged that, especially in the case of traffic accidents, compulsory insurance policies are the death knell of tort law.

In addition to wrongs committed negligently, the law recognizes a number of intentional torts or delicts. Among them is the civil wrong of defamation. The classic (rather technical) definition of the common law tort of defamation is that the wrong consists in publishing a false statement about the plaintiff which tends to lower him or her in the estimation of right-thinking members of the community generally, or which tends to cause him or her to be shunned or avoided, or which bring him or her into hatred, ridicule, or contempt, or which tend to discredit him or her in his or her trade or profession.

The test is an objective one; the fact that the defendant did not intend to defame the plaintiff is not a relevant consideration. Nor does it matter that he was unaware of the circumstances which rendered an apparently innocuous statement defamatory, or that the statement is not believed to be true by anyone who reads it. The defendant may be held liable for the repetition of defamatory statements where he authorizes or intends such repetition, but, as a general rule, he is not liable for unauthorized repetition unless the person to whom it was published was under a duty to repeat it. Therefore in the case of a book, several publications normally occur: the author to the publisher; the author and publisher jointly to the printer; by the author, publisher, and printer jointly to the distributor; and so on. Each repetition is a new publication which gives rise to a new course of action. The law does, however, distinguish between those who are mere distributors, on the one hand, and those who take an active part in the production of the work, on the other. Similar questions may arise in respect of the publishing of a libel on the Internet.

There are four main defences to an action for defamation. First is the defence of justification (or ‘truth’). Acknowledging the significance of free speech, the law provides that it is a complete answer to an action for defamation for the defendant to prove that the statement he published is substantially true. Second, the defence of absolute privilege protects defamatory statements when made in the course of legislative, judicial, and other official proceedings. Third, the defence of qualified

privilege obtains in circumstances where the defendant has a duty (legal, social, or moral) to make a statement to a person who has a corresponding interest or duty to receive it, i.e., where the publisher and those to whom the publication is made have a common interest in the data concerned. The defence extends to fair and accurate reports of legislative and judicial proceedings.

Fourth, there is the defence of fair comment which, in practice, tends to be the most important. This defence protects honest expressions of opinion on matters of public interest and is particularly relevant to the protection of free speech – a fact recognized by the courts. The comment must be on a matter of public interest. Matters of public interest have been held to include the public conduct of persons who hold or seek a public office or position of public trust, the administration of justice, political and state matters, the management of public institutions, works of art, public performances, and anything that invites comment or challenges public attention. But the statement must be one of opinion not fact. This is a distinction that is easier to draw in theory than in practice. It must be ‘fair’, that is, it must be based on facts, and supported by those facts; there must be a basis of fact sufficient to warrant the comment made. The facts upon which the comment is based must be true. If they are true and the defendant is honestly expressing his genuine opinion on a subject of public interest, then it does not matter whether a reasonable person would hold such an opinion.

The plaintiff may defeat the defence by proving that the defendant was actuated by malice. It is for the plaintiff to prove malice. Malice defeats also the defence of qualified privilege. In respect of fair comment, malice denotes any improper motive which may have caused the defendant to make his comment. In this sense, then, his comment is not an honest expression of his view. As a general rule, the test is ‘Did the defendant believe the statement to be true?’

 

Rather than recognizing a separate tort of defamation, civil law systems protect reputation under the wing of personality rights. In several respects, the approach in Germany, France, and other European countries is more stringent than the common law. For example, the defences such as fair comment and justification are often not available. The free speech provisions of the European Convention on Human Rights, however, have tempered the harshness of the law. Most European countries protect the plaintiff also against ‘insults’, a potentially unlimited area of liability that has been criticized by the European Court of Human Rights. On the other hand, while awards of damages tend in common law courts to be high (sometimes exceptionally so), the fines imposed by European courts are relatively trifling.

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