Tort Vocab

Question 1

Action

Answer 1

Action: a claimant is said to bring an action in civil law. Alternatively, the claimant could be said to sue the defendant.

Question 2

Aggravated damages

Answer 2

Aggravated damages: damages given to the claimant in excess of straightforward compensation because the defendant has behaved badly.

Question 3

Amenity damage

Answer 3

Amenity damage: the nuisance does not cause physical damage to the property, but it does interfere with the claimant’s enjoyment of his property.

Question 4

Antitrust law

Answer 4

Antitrust law: term given in the United States to competition law, in particular the branch of competition law that bans agreements that undermine free competition.

Question 5

Assault

Answer 5

Assault: the defendant causes the claimant to believe he is going to commit a battery.

Question 6

Assumption of a duty

Answer 6

Assumption of a duty: although the defendant does not owe a duty of care fixed in law to the claimant, by voluntarily assuming a duty of care he becomes liable in tort to the claimant if he is negligent.

Question 7

Assumption of the risk

Answer 7

Assumption of the risk: term often used in the United States where the defence to a negligence claim is that the plaintiff had accepted and consented to the risk of injury.

Question 8

Award

Answer 8

Award: damages are said to be awarded by the court to the claimant.

Question 9

Balance of probabilities

Answer 9

Balance of probabilities: the standard of proof in civil cases in England. The claimant in a tort action must show, therefore, ‘on the balance of probabilities’ that the defendant was at fault.

Question 10

Battery

Answer 10

Battery: the defendant interferes with the claimant’s person. There must be some form of contact, but physical injury is not necessary.

Question 11

Breach of a duty of care

Answer 11

Breach of a duty of care: the party owing a duty of care has failed in the performance of that duty.

Question 12

Breach of confidence

Answer 12

Breach of confidence: in English law, the law on confidentiality imposes a duty of confidence whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. It is a misuse of private information which could affect an individual’s private life or business, for example, the wrongful disclosure of trade secrets or other business information.

Question 13

Break the chain of causation

Answer 13

Break the chain of causation: where another action intervenes and breaks the chain of causation between the defendant’s act and the harm suffered by the claimant.

Question 14

Burden of proof

Answer 14

Burden of proof: obligation to prove facts. This burden is usually on the claimant, but the burden can shift to the other party in certain circumstances, for example, where the evidential rule of res ipsa loquitur applies in negligence cases.

Question 15

But for rule

Answer 15

But for rule: this is a rule of causation. The claimant must show but for the act of the defendant he would not have suffered his injury.

Question 16

Causation

Answer 16

Causation: there must be a link between the damage suffered by the claimant and the defendant’s act or omission.

Question 17

Chattel

Answer 17

Chattel: personal property rather than real property.

Question 18

Chose in action

Answer 18

Chose in action: a personal right that can be enforced as if it were property. It is a thing recoverable by a lawsuit rather than a thing in actual possession.

Question 19

Comparative negligence

Answer 19

Comparative negligence: term used in the United States. The negligence of the plaintiff is compared to the negligence of the defendant. The plaintiff’s damages will be reduced in proportion to the extent of his negligence.

Question 20

Compensatory damages

Answer 20

Compensatory damages: an amount awarded to recompense the claimant for damage suffered due to the tortious conduct of the defendant.

Question 21

Consumer protection

Answer 21

Consumer protection: a consumer is someone not acting in the course of business. Consumer protection under the law of tort is particularly concerned with defective products that have caused damage to a consumer or his property.

Question 22

Contemptuous damages

Answer 22

Contemptuous damages: an insignificant amount is awarded where the claimant has won his case but the action had little merit.

Question 23

Contributory negligence

Answer 23

Contributory negligence: a defence established where it is proved that an injured party failed to take reasonable care of himself, thus contributing to his own injury. In England, the defence of contributory negligence no longer means that the claimant cannot recover damages, but that the amount of damages recoverable will be less. In the United States, some of the states have retained the old doctrine of contributory negligence. In these states a successful plea of contributory negligence would totally defeat a plaintiff’s claim.

Question 24

Conversion

Answer 24

Conversion: the tort is committed when a person deals with personal property in a way that is inconsistent with another person’s right to the possession of that property. That interference goes so far as to amount to a denial of the claimant’s right to possess the chattel.

Question 25

Course of employment

Answer 25

Course of employment: that the employee was doing his job at the time the tort was committed.

Question 26

Damages

Answer 26

Damages: this is an important and common remedy in tort, and many other branches of civil law. It means financial compensation for the claimant for the harm suffered. In tort, damages are usually calculated to restore the claimant to the position he was in before the tort was committed.

Question 27

Defamation

Answer 27

Defamation: where the claimant’s reputation has been damaged by a published, defamatory statement.

Question 28

Defamatory statement

Answer 28

Defamatory statement: a statement which has lowered the claimant’s reputation in the eyes of right-thinking people.

Question 29

Defences to defamation

Answer 29

Defences to defamation: truth, honest opinion, publication on a matter of public interest, absolute or qualified privilege, or an unintentional defamation made by a publisher.

Question 30

Defendant

Answer 30

Defendant: the one accused of committing a tort is often referred to as a tortfeasor.

Question 31

Disclaimer

Answer 31

Disclaimer: notice given that legal responsibility will not be accepted.

Question 32

Discrimination torts

Answer 32

Discrimination torts: torts laid down in statute regulating sexual, racial, religious and disability discrimination.

Question 33

Duty of care

Answer 33

Duty of care: a duty binding on one party to avoid acts or omissions, which could reasonably be foreseen as likely to injure the other party.

Question 34

Duty to mitigate

Answer 34

Duty to mitigate: where a party has been harmed by the tortious behaviour of another, he is nonetheless under a duty to ensure that his losses are no greater than strictly necessary.

Question 35

Economic torts

Answer 35

Economic torts: this term covers a range of torts where the defendant can be held liable for intentionally inflicting economic loss upon another. It includes the torts of deceit, malicious or injurious falsehood, passing-off, interference with contract, intimidation and conspiracy.

Question 36

Employee

Answer 36

Employee: an individual who has entered into or works under a contract of employment. Whether someone is an employee cannot solely be determined by whether he is under an obligation to follow orders. Today, various factors are taken into account in determining whether someone is employed or self-employed.

Question 37

Employer

Answer 37

Employer: an employer may be held liable for torts committed by those who work for him according to a contract of employment.

Question 38

Exemplary or punitive damages

Answer 38

Exemplary or punitive damages: an amount awarded well in excess of straightforward compensation for the claimant, as the intention is to punish the defendant for his conduct.

Question 39

False imprisonment

Answer 39

False imprisonment: the defendant deprives the claimant of his liberty.

Question 40

Fraudulent misrepresentation

Answer 40

Fraudulent misrepresentation: the maker of the statement either knows the statement is not true or is reckless as to whether it is true.

Question 41

Goods

Answer 41

Goods: personal property but not a chose in action, money (in the sense of currency) or securities.

Question 42

Harassment

Answer 42

Harassment: in the legal context, any form of discriminatory conduct in response to a person’s gender, race or religion. An employer can be held vicariously liable for acts of harassment committed by employees in the course of employment unless all reasonable precautions were taken to prevent the act of discrimination from taking place.

Question 43

Immediate aftermath

Answer 43

Immediate aftermath: this term is relevant where a claimant for nervous shock in a negligence case has not directly witnessed the accident, but witnesses the conse quences of that accident soon afterwards.

Question 44

Incorporeal chattels

Answer 44

Incorporeal chattels: intangible personal property that is of value but has itself no inherent value, for example, a grant of patent.

Question 45

Independent contractor

Answer 45

Independent contractor: does not work under a contract of employment but under a contract for services. As an independent contractor is self-employed, different rules apply to independent contractors than to employees.

Question 46

Injunction

Answer 46

Injunction: an order of the court directed at the defendant compelling him to stop doing something or to do something. A prohibitory injunction prohibits a person from doing something. A mandatory injunction requires the direct performance of a positive act. An interim injunction is granted before the outcome of a trial. A final injunction, also known as a perpetual or permanent injunction, may be granted upon the completion of a trial. The term interlocutory injunction is still used in the United States, but in England the term interim injunction is now preferred.

Question 47

Intangible property

Answer 47

Intangible property: personal property that cannot be seen or touched, but is of value. It refers to an abstract concept, such as patent or copyright.

Question 48

Joint and several liability

Answer 48

Joint and several liability: this refers to the situation where more than one person can be held liable for a tort or each person can be held individually liable for the full amount.

Question 49

Law of obligations

Answer 49

Law of obligations: this area of law covers contractual obligations, which are voluntary and owed to specific persons; obligations in tort, which are fixed by law and not limited to specific persons; and restitution where the defendant has unjustly enriched himself at the claimant’s expense.

Question 50

Legal person

Answer 50

Legal person: this is an artificial construct. An abstract entity, for example, a registered company, is a separate person in law.

Question 51

Libel

Answer 51

Libel: where the defamatory statements are in a more permanent form, such as in the form of writing.

Question 52

Limitation period

Answer 52

Limitation period: a claim must be brought within a specified, fixed period of time. This period may vary from tort to tort.

Question 53

Loss of amenity

Answer 53

Loss of amenity: damages are awarded in tort not just for the pain and suffering of a victim but also for loss of amenity. For example, the loss of a hand itself imposes a standard tariff, but the loss will be greater for a claimant who loved playing the piano.

Question 54

Lump sum

Answer 54

Lump sum: damages may be awarded in the form of one, final payment. A discount rate applies where a lump sum has been awarded which takes into account future losses and expenses, as that lump sum can earn interest in the meantime.

Question 55

Menacing

Answer 55

Menacing: some states in the United States that have a statutory definition of assault that includes battery, no longer refer to assault, but refer instead to menacing.

Question 56

Natural person

Answer 56

Natural person: this is a human being rather than an artificial legal construct, such as a company.

Question 57

Negligence

Answer 57

Negligence: this is more than mere carelessness. It requires a breach of a duty of care fixed by law, which causes damage to the one to whom the duty was owed.

Question 58

Negligent act

Answer 58

Negligent act: pure financial loss caused by a negligent act rather than a negligent statement is not actionable.

Question 59

Negligent misstatement

Answer 59

Negligent misstatement: a false statement made negligently. In certain circumstances, a duty of care is imposed on the maker of a negligent misstatement.

Question 60

Neighbour principle

Answer 60

Neighbour principle: in the tort of negligence, this principle helps to determine whether the defendant owed the claimant a duty of care. It states that you must take reasonable care to avoid acts or omissions which you could reasonably foresee would be likely to injure your neighbour, a neighbour being defined as one who would be so closely and directly affected by your act that you should have him in mind.

Question 61

Nervous shock

Answer 61

Nervous shock: where psychiatric harm has been suffered by the claimant. Emotional distress or grief is insufficient to constitute psychiatric harm for this purpose.

Question 62

Nominal damages

Answer 62

Nominal damages: are awarded where the claimant has been successful but has suffered very little damage.

Question 63

Non-pecuniary loss

Answer 63

Non-pecuniary loss: loss of enjoyment in life due to the pain and suffering caused by the defendant’s tortious conduct.

Question 64

Novus actus interveniens

Answer 64

Novus actus interveniens (nova causa interveniens): an intervening event breaking the chain of causation.

Question 65

Nuisance

Answer 65

Nuisance: in general, infringement of the claimant’s use or enjoyment of his land.

Question 66

Objective test

Answer 66

Objective test: the test in negligence for breach of a duty of care is not whether this particular defendant has acted unreasonably but whether a reasonable man would have acted in this way

Question 67

Occupier

Answer 67

Occupier: if a person controls premises, he is deemed to be the occupier and as such owes a duty of care to all visitors. In certain circumstances this duty is owed even to persons who are not invited visitors.

Question 68

Pecuniary loss

Answer 68

Pecuniary loss: where the loss suffered by the claimant is of an economic or financial nature.

Question 69

Personal property

Answer 69

Personal property: property other than real property, such as goods and chattels.

Question 70

Physical damage

Answer 70

Physical damage: with respect to nuisance, physical damage means that the property itself has been harmed, whereas amenity damage is interference that prevents the claimant from enjoying his land.

Question 71

Premises

Answer 71

Premises: the word premises refers to the land and any buildings or structures on that land.

Question 72

Private nuisance

Answer 72

Private nuisance: where the defendant has interfered in an unreasonable way with an individual’s use or enjoyment of his land.

Question 73

Proximity

Answer 73

Proximity: is a factor to be taken into account in establishing a duty of care in negligence. There must be a sufficiently close relationship between the claimant and the defendant to show that the claimant would be closely and directly affected by the defendant’s conduct. This relationship is not confined to physical proximity (closeness in terms of time and space), but denotes a legal relationship whereby it would be within the reasonable contemplation of the defendant that this claimant would suffer harm because of his wrongdoing. There is no precise formulation as to what constitutes proximity.

Question 74

Public nuisance

Answer 74

Public nuisance: where the harm is to the public at large, such as to a local community, or a class of members of the public. To bring an action in tort for public nuisance, an individual must show that he has suffered special damage.

Question 75

Publish

Answer 75

Publish: with respect to the tort of defamation, a defamatory statement must have been published, in other words, brought to the attention of a third party.

Question 76

Quasi-contractual

Answer 76

Quasi-contractual: although there is no contract between the parties, the relationship resembles a contractual one.

Question 77

Real chattel

Answer 77

Real chattel: a leasehold is termed a real chattel. The word ‘real’ in real chattel indicates that a lease is an estate in land, but in the past a lease was not a ground for a so-called real action. This meant that a leasehold could not be classed as real property and for this reason it falls under the category of personal property.

Question 78

Real property

Answer 78

Real property: land and structures attached to the land.

Question 79

Reasonable care

Answer 79

Reasonable care: whether the defendant took reasonable care to prevent harm to the claimant is judged on the facts of the case.

Question 80

Reasonable foreseeability

Answer 80

Reasonable foreseeability: in a negligence claim, one factor that must be taken into account in establishing a duty of care is whether the conduct that injured the claimant could be reasonably foreseen by the defendant as having that effect. There is no precise formulation as to what will and what will not be considered to be reasonably foreseeable.

Question 81

Reasonable man/person

Answer 81

Reasonable man/person: the test for determining whether there has been a breach of a duty of care is objective. The standard is one of reasonableness; whether the defendant has acted as a reasonable man would have acted in the situation.

Question 82

Reckless

Answer 82

Reckless: a misrepresentation made recklessly is where the maker did not care whether the statement he made was true or not.

Question 83

Remoteness

Answer 83

Remoteness: the defendant is only liable for damage that is foreseeable. If the damage could not have been reasonably foreseen at the time of the defendant’s act or omission, it is said to be too remote.

Question 84

Res ipsa loquitur

Answer 84

Res ipsa loquitur: this is an important rule in negligence cases. It means ‘the facts speak for themselves’. This rule of evidence applies where it would be hard to explain how the claimant was injured unless the defendant was negligent. The evidential burden of proof is then shifted, as negligence by the defendant is now implied and the defendant must show that his negligence did not cause the claimant’s injury.

Question 85

Respondeat superior

Answer 85

Respondeat superior: Latin term meaning ‘let the superior reply’. It is often used in the United States where a ‘master-servant’ relationship is concerned or where an agent can be seen as a servant for this purpose. With respect to tort liability, it means that the employer will be held liable for the tortious acts of the employee or agent acting in the course of his employment or agency.

Question 86

Rule in Rylands v Fletcher

Answer 86

Rule in Rylands v Fletcher: a person can be held strictly liable if he has brought onto his land, or keeps there, anything that could cause ‘mischief’ to a neighbour were it to escape. This thing capable of causing mischief must constitute a non-natural use of the land and the damage must be a natural consequence of the escape.

Question 87

Slander

Answer 87

Slander: usually an oral defamatory statement.

Question 88

Special damage

Answer 88

Special damage: in the context of the tort of public nuisance, it means that the claimant must show that he has suffered more than the others who have been affected by the nuisance.

Question 89

Special relationship

Answer 89

Special relationship: there may be liability for a negligent misstatement if the nature of the relationship between the claimant and the defendant is such that the defendant could expect the claimant to rely on the statement.

Question 90

State of the art defence

Answer 90

State of the art defence: this defence may be called upon where the defendant is held responsible for the damage caused by a defective product. Given the state of scientific knowledge at the time, it is argued that the defendant could not possibly have known that the product was defective.

Question 91

Statute barred

Answer 91

Statute barred: if a claim is not brought within the fixed period available for that particular action, it can no longer be heard by a court.

Question 92

Statutory duties of care

Answer 92

Statutory duties of care: where a statute imposes a duty of care upon the defendant.

Question 93

Statutory nuisances

Answer 93

Statutory nuisances: particular forms of common law nuisance are also covered by statute, such as a nuisance that could have a detrimental effect on the environment.

Question 94

Statutory product liability

Answer 94

Statutory product liability: English statute law imposes strict liability for defective (i.e., not safe) products causing damage to consumers. Damage must be in the form of death, personal injury or damage to other private property. The claimant must still prove that the product caused the damage.

Question 95

Strict liability

Answer 95

Strict liability: the defendant has neither acted negligently nor intentionally. This terminology arises both in civil and criminal law. In tort, an area of strict liability both in the United States and England is that of consumer product liability.

Question 96

Structured settlement

Answer 96

Structured settlement: where the damages awarded to the claimant take the form of a lump sum followed by periodic payments.

Question 97

Sue

Answer 97

Sue: the verb ‘to sue’ means to initiate legal proceedings with the intention to have the case heard in court.

Question 98

Tangible property

Answer 98

Tangible property: in simple terms, if property is tangible, it can be seen and touched. Tangible property can be either real or personal property. See intangible property.

Question 99

Thin skull rule

Answer 99

Thin skull rule: if the defendant could reasonably foresee the type of injury, then he is liable for the full extent of that injury, even though he could not foresee that full extent because he was unaware of some peculiarity of the claimant.

Question 100

Tort

Answer 100

Tort: is a private or civil wrong resulting from a breach of a legal duty. The law of tort is a collection of different causes of action, as there is no general principle of liability for unjustifiable harm.

Question 101

Tortfeasor

Answer 101

Tortfeasor: this term refers to one accused of tortious conduct, and in a tort case it is interchangeable with the term defendant.

Question 102

Tortious

Answer 102

Tortious: is the adjective referring to tort, hence ‘tortious liability’.

Question 103

Tort of invasion of privacy

Answer 103

Tort of invasion of privacy: the wrongful intrusion into a person’s private affairs. There is no such specific tort in English law as yet. Invasion of privacy is, however, recognised as a tort in some other common law jurisdictions, such as the United States. The United States recognises four types of privacy torts: appropriation (unauthorised use of a picture or name for commercial advantage), intrusion (into affairs or private domain), public disclosure of private facts (of a nature that a reasonable person would find objectionable) and false light (the publication of facts that puts the claimant in a false light).

Question 104

Trademark

Answer 104

Trademark: any sign which is capable of distinguishing the goods or services of one undertaking from those of another.

Question 105

Trespass to chattels

Answer 105

Trespass to chattels: intentional interference with a chattel in the possession of the claimant.

Question 106

Trespass to land

Answer 106

Trespass to land: intentional interference with another’s peaceful possession of his land.

Question 107

Trespass to the person

Answer 107

Trespass to the person: intentional interference with the person.

Question 108

Unfair competition

Answer 108

Unfair competition: is the violation of accepted fair trade practices.

Question 109

Vicarious liability

Answer 109

Vicarious liability: the ‘master’ is held responsible for the acts of the ‘servant’. This can arise where an employer is held liable for the torts of an employee committed in the course of the employee’s employment.

Question 110

Volenti non fit injuria

Answer 110

Volenti non fit injuria: there is no cause of action in negligence for a person who has consented to taking the risk of injury. This defence now has a limited application.