法律英语——Law of Torts

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沙丽金法律英语

the conduct must cause the plaintiff to suffer severe emotional distress.
Examples
A defendant refused to inform a plaintiff of the whereabouts of the plaintiff's child for several years, though that defendant knew where the child was the entire time.
Assault
Definition
(in common law) an intentional act that creates an apprehension of an imminent harmful or offensive contact
Assault and battery
As distinguished from battery, assault need not involve actual contact—it only needs intent and the resulting apprehension.
General
Underlying policy considerations
maintenance of a peaceful society deterrence social responsibility the balancing of economic interests
against societal benefits
wielding a kng the word snake to a person whom you know is in fear of snakes

法律英语专题：侵权法(tort law)资料讲解

The plaintiff must have a reasonable apprehension of such contact.
Actual fear on the plaintiff’s part is not required.
Examples
Assault
swinging a baseball bat at someone holding a rock and threatening to throw
Subcategories
torts against the person
assault battery false imprisonment intentional infliction of emotional distress
General
property torts
trespass to land trespass to chattels (personal property) conversion
dignitary torts
defamation invasion of privacy
Torts Against the Person
Assault
Definition
an intentional act that causes an apprehension of immediate harmful or offensive contact
法律英语专题：侵权法(tort law)
General
to deter others from committing the same act
US tort law
Tort law in the U. S. is largely common law.

法律英语法律术语

1、TWO MAIN LEGAL FAMILIESCommon/English/English-American Law (Legal) System/Family普通法系- case law system- Anglo-Saxon case-law system- Anglo-American legal systemContinental/Roman/Civil Law (Legal) System/Family大陆法系- civilian legal system- civil-law system2、civil law民法、国内法、罗马法、大陆法3、substantive Law（实体法）VS procedural Law（程序法）4、case law（案例法）vs. statutory law（成文法）statutory / written / codified / enacted law制定法、成文法5、adversary trial system（对抗制）vs. inquisitorial system （纠问制）6、jury trial system陪审团制度7、The reports of the United States Supreme Court联邦最高法院判例汇编The reports of some States州法院判例汇编8、legal cases法律案例9、private law and / vs. public law10、the statutory law continues to be subject to binding interpretation through case law（其成文法继续适用通过判例法(注：即先例)进行的有约束力的解释）11、Common law (in narrow sense):- common general law- local law- itinerant judges of the English royal court- enforcement of a claim- special form of action: writ- classical Roman law- Provisions of Oxford (1258)牛津条例- “writ upon the case”本案令状12、enforcement 强制执行；claim 请求；action 诉讼行为；writ 法院令状；recourse 追索权；追索，追偿13、Equity law衡平法- “ equity ”——doing equity- chancellor- relief 救济- judiciary- Court of Chancery （衡平法院）and / vs. ordinary common law courts-maxim- fixed, inflexible- equitable doctrines (e.g. law of salvage at sea)- In a conflict between law & equity,equity should prevail.14、awardcompensatory, compensatedamagesspecific performance特定履行|实际履行injunction强制令real/immoveable property（不动产）and / vs. personal/moveable property （动产）15、c ommon law remedy/relief:普通法救济- (compensatory) damages金钱赔偿16、e quity/equitable remedies/relief:衡平法救济- injunction ( a temporary or final order to do or not to do a specific act)强制令- specific performance (a party to an agreement is ordered by the court to perform his obligations according to the terms of the agreement)- restitution17、judicialexpress （明示）vs. implied （默示）provision, providejurisdiction 管辖区域,法域; (司法）管辖权civil suit民事诉讼titlethe law of property财产法before the judge在法庭上17、a pply/applicable/available适用于be subject to受。

法律英语专题：侵权法(tort-law)

was riding, causing him to fall and be injured mixing something offensive in food that he knows another will eat—the other does in fact eat the offensive matter
Tort Law
General
Tort
a civil wrong which unfairly causes someone else to suffer loss or harm
★It does not include breach of contract or trust. (A civil wrong can be a tort, breach of contract or breach of trust.)
Many judges utilize the Restatement of Torts (2nd) as an influential guide.
The Restatement is an influential treatise issued by the American Law Institute, which summarizes the general principles of common law United States tort law.
With the tort of assault, a perceived threat by the victim is paramount.
Assault
＊A defendant who throws a rock at a sleeping victim and misses can only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm.

法律英语

TortsTort 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 my car); if I falsely call somebody maliciously arrested, or invade somebody’s privacy or trespass on someone’s land without permission.This is a more or 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 does not 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 appliances, drugs, or other commodities). These last two categories, however, make a noise in society; the rise in 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 form doctors and hospitals.A fundamental concept of tort law is “negligence.”This means, toughly, carelessness, Basically, if somebody causes me harm, I can sue him for damages only if he was negligent. He has 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.侵权行为法侵权行为法通常被称为“民事不法行为”的法律,很难给出一个较为精确的定义。

法律英语

第七课
1.a writ of execution
2.judgement creditor
3。garnishment
4.judgement debtor判决债务人
5.dispose of 处理
6.attachment财产保全
7.exempt from使。。。免受
8.set aside保全程序
20.federal question（jurisdiction）联邦问题（管辖权）
21.the us courts of appeals美国法院的上诉
22.the court of appeals for the district上诉法庭区
23.the court of appeals for the federal circuit联邦巡回上诉法院
erning law适用法律，准据法
23.the operation of the judicial process
司法过程的运行
lesson two
1.choice of law 法律的选择
2.multi—state transactions跨洲交易、事项
3.substantive rights实体权利
13.summons 传票
14.affirmative defense 积极抗辩
15.counter—claim 反诉
16.on one’s part就某人而言，在某人一方
17.give notice to 通知
18.under penalty of 违者以。。。惩治
19. in essence 实质上
4.choice of forum选择法院

The Law of Tort(m)

5. Damages: the object of awarding damages in contract is to put claimant in position would have been in had contract been performed. In tort, it is to put the claimant(要求者) in the position he would have been in had the tort not happened.
Definitions

TORT “Tortious liability arises from the breach of a duty primarily fixed by law: this duty is towards persons generally and its breach is redressible by an action for damages” (侵权责任是因违反法定责任而产生的,任何人违反该法定责任,受害人可提起诉讼得到救济----赔偿金) CONTRACT “Most contracts take the form of an agreement, that is to say, each party agrees to accept the promise or promises of the other in return for the promise or promises made by itself”
The Law of Tort
A. DEFINITION OF TORT

1. Torts are civil wrongs, other than a breach of contract, for which the law will provide a remedy.

Law of Torts

So what does Negligence involve?
Leading case: Donoghue v Stevenson (1932)
The House of Lords extracted four requirements:

Duty of care Breach of that duty of care Injury or damage to the plaintiff Connection between that breach and the injury
Private Nuisance

Байду номын сангаас

Continuous indirect interference over a period of time with the plaintiff‟s use or enjoyment of land Indirect interference includes: smoke and fumes; noise and vibrations; tree branches and roots; pollution cf trespass which covers only direct entry onto land, and negligence, which encompasses both direct and indirect acts
Tort
Duties imposed by law
Parties often previously unconnected Privity of contract is irrelevant Concerned with protecting interests and compensating wrongs Emphasis on fault Concerned with unsafe products Rules of remoteness of damage based on foresight of the type of harm Aims to restore the plaintiff to pre-tort position Equitable remedies available in appropriate circumstances For limitations, time begins to run from the date the damage occurred

法律英语必背单词期末考试法学

法律英语必背单词第一章法律制度Civil Law：民法Economic Law：经济法Legal system：法律制度；法律体系；法系American’s youth：美国建国初期Fifty States：50个州（美国是个联邦制国家，每个州都是一个相对独立的实体，有着自己的宪法和政府组织，因此把state理解成邦国更为准确）The reports of the United States Supreme Court：联邦最高法院判例汇编Stout volumes：巨册Overarching：贯穿始终的National characteristics：民族特性Binding interpretation：有约束力的法律解释Common law：普通法（它是统一适用于整个国家，效力优先于地方习惯法的法律，因此理解成共同法更为准确）Itinerant judges of the English royal court：英国皇家法院的巡回法官Writ：令状Provisions of Oxford：牛津条例（从贵族会议中推选出的24人委员会为限制亨利三世的权力而在1258年制定的一部带有宪法性质的法律）Writ upon the case：本案令状Ex aequo et bono：公平且善良Court of Chancery：衡平法院Maxims：法则Compensatory damage：金钱赔偿Judicial acceptance：司法接纳（即，通过判例法的方式接受）第二章法律职业Legal profession：法律职业The bar：法律职业Multistate Bar Exam：律师资格考试Substantial fraction：大多数Lawyer：律师Attorney：律师Attorney-at-law：律师Counsellor：律师Counsellor-at-law：律师Retain：雇用Practice law：从事律师业务Harlan Fiske Stone：哈兰·菲斯克·斯通，1941年担任最高法院首席大法官Chief Justice：首席大法官Barristers and solicitors：诉讼律师和非诉律师。

tort law essay

Outline the concepts of causation and remoteness in the law of torts in England and Wales. To what extent can the current law governing causation and remoteness be considered effective and pragmatic?Causation and remoteness are the essential links between the breach of the obligation imposed by law and the damage. The claimant must prove that the tort caused the loss of which he complains if he wants to obtain substantial, rather than nominal, damages even in torts which are actionable per se. As can be seen there is theoretical difference between causation and remoteness. Causation refers to the physical connection between the torts and the damage; the claimant must set up an unbroken connection between his damage and the defenda nt‟s wrongful conduct. I t is concerned with consequence and non-consequence in a factual sense. Remoteness relates to the requirement that the damage must be of a foreseeable type. In negligence claims, once the claimant has established that the defendant owes them a duty of care and is in breach of that duty which has caused damage, they must also demonstrate that the damage was not too remote.CausationCausation is relevant to all torts in which proof of damage is essential. The claimant will not succeed unless it can be demonstrated that the negligent act of the defendant caused or materially contributed to the damage complained of. The task of setting up a causal connection between the act of the defendant and the damage suffered by the claimant is not always simple. Often, there may be a complex set of conditions present, or even two concurrent sets of circumstances, and it can be difficult to untangle the web of circumstances to pin-point liability.1. Causation in factIn general, the onus of proving that the defendant‟s failure to take care was a cause of the claimant‟s loss or damage rests upon the claimant, who must prove his or her casein the balance of probabilities.1Proof on the balance of probabilities is taken as conclusive of the causal link and the successful claimant is entitled prima facie to full recovery.2This rule applies, at any rate, in determining whether or not a causal link exists between a failure and an event that actually has occurred.(1)The “but for” testThe “but for” test is usually employed in the investigation of causative links between the torts and the damage. This test involves asking the simple question: …would the claimant have incurred the damage “but for” the defendant‟s tort?‟ A negative answer to this question means that it is likely t hat the defendant‟s wrong factually caused the claimant‟s damage. If the damage would have been sustained anyway, irrespective of the defendant‟s wrong, there will be no liability. For example, in Barnett v Chelsea &Kensington Hospital Management Committee [1969]3a doctor in a casualty department sent a patient away without treatment, telling him to see his own doctor. The patient died from arsenic poisoning. It was held that the doctor‟s conduct was negligent, but the expert evidence indicated that the patient was beyond help and would have died in any event. Therefore the doctor‟s negligence did not cause the death. Similarly, in Robinson v Post Office [1974]4a doctor‟s omission to test for an allergic reaction to an anti-tetanus vaccination was not caus ally related to the patient‟s subsequent reaction, because the test would not have revealed the allergy in time. 5 The “but for” test works very enough in the majority of cases, but in some complex cases in runs into problems. Other approaches have been applied in order to solve the issues (which will be introduced latter).(2)proof of causationIt is for the claimant to prove, on the balance of probabilities, that the defendant‟s breach of duty caused the damage. So where there are conflicting explanations for the claimant‟s condition, neither of which is wholly satisfactory, the defendant does not1See Christian Witting, Liability For Negligent Misstatements, Oxford University Press(2004) at P290 2Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, HCA (Deane, Gaudron and Mc Hugh JJ)3Barnett v Chelsea &Kensington Hospital Management Committee [1969] 1 Q.B. 428.4Robinson v Post Office [1974] 2 All E.R 7375See Michael A. Jones Textbook On Tort 8th Oxford Un iversity Press(2002) at P224-225have to prove that his explanation is the correct one, though failure to prove it may be a factor in deciding whether the claimant‟s explanation of the cause shou ld be accepted. For instance, in Pickford v Imperial Chemical Industries [1998]6the absence of conclusive evidence establishing a cause of a condition, the judge was free to find that causation was not established and that the claim was lost. There was no necessary obligation on an employer to have procedures which might create claims. That is to say the claimant must prove that his harm was made because of the breach of duty.However the claimant does not have to prove that the defendant‟s breach of duty was the main cause of the damage provided that it materially contributed to the damage. In Bonnington Castings Ltd v Wardlaw [1956]7, the plaintiff, who had worked for eight years in the dressing shop of a foundry producing steel casing owned by the defendants, contracted pneumoconiosis through inhaling air which contained silica dust. The main source of this dust was from pneumatic hammers (which called …innocent dust‟) and part of dust came from operations conducted at swing grinders (which called …guilty dust‟). There was no evidence as to the proportions of innocent dust and guilty dust inhaled by the plaintiff.8It was held by the House of Lords that the proportion of dust coming from the swing grinders and inhaled by the plaintiff had been shown on the evidence not to have been negligible and had contributed materially to his contracting pneumoconiosis; the defendants were, therefore, liable to him in damages for breach of statutory duty.(3)loss of a chanceAn alternative, and arguably better, approach to problems of factual uncertainty would be to deal with them in terms of the measure of damages by reference to the chance of loss, rather than liability on the all or nothing basis. In Hotson v East6Pickford v Imperial Chemical Industries [1998] 3 All ER 4627Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 6158See Michael A. Jones Textbook On Tort 8th (2002) Oxford University Press at P230Berkshire Area Health Authority [1987]9, the claimant fell and was taken to hospital, where his keen was X-rayed. A hip injury was not diagnosed. Five years later he returned to hospital, when the hip injury was discovered. By this time the hip injury had resulted in a deformity of the hip joint. The defendants argued that deformity would have occurred as a result of the injury, whether or not it had been properly diagnosed on the first trip to hospital. The House of Lords held that the issue was one of causation, not quantification of damage. In other words, the claimant had not proved on a balance of probabilities that the negligent treatment had caused his disability. On the contrary, the probabilities were 75-25 that it had not.10The burden of proof to establish causation therefore rests on the claimant throughout the case. If they fail to establish, on the balance of probabilities, that the defendant…s negligence was a material contributory cause of the damage, their action fails. Where there is only one possible cause of the damage and the defendant‟s breach of duty has exposed the claimant to the risk of damage which has materialized, then causation is established. It is not yet known whether a claim in tort can be framed in terms of loss of chance.112. Causation in lawThe “but for” test excludes those factors which cannot be said to have been a cause of the damage, but there may be more than one causal element that satisfies the “but for” test, in which case the court may have to choose which of two or more operative cause are to be treated as the caus e in law of the claimant‟s damage. The question is whether the defendant‟s breach of duty was the cause, for the purpose of attributing legal responsibility.(1) Successive sufficient cause9Hotson v East Berkshire Area Health Authority [1987] 2 All ER 90910See Michael A. Jones B.A., LL.M., Ph. D. Tort Law Library Medical Negligence; Sweet & Maxwell [1996] at 255-25611See John Cooke Law of Tort 6th Pearson Longman [2003] at P135-136Where there are two independent events, each of which was sufficient to have caused the damage sustained by the claimant, the determination of causal responsibility depends on the nature of events and the order in which they occurred. Thus, where both events are tortious responsibility will be attributed to the tort which occurred first in time.12In Baker v Willoughby [1970], for example, the plaintiff injured his leg through the defendant‟s negligence, leaving him partially disabled. Subsequently, the plaintiff was shot in the same leg by another person and as a result the leg had to be amputated. It was likely that the leg would have had to have been amputated as a result of the shooting anyway. It was held that the first defendant was liable for the plaintiff‟s disability (not the amputation) for the rest of his life. I rrespective of the amputation, it would have been a defendant. The liability for the existing disability did not cease when the second incident took place.13(2) Multiple Causes--ConcurrentWhere there exist two or more cause which operate concurrently it may be factually impossible to determine which one was the cause. This has proved problematic not least because it is the claimant's responsibility to establish which one was the cause. On general principles the burden of proving this is on the balance of probabilities. For example, the claimant has to demonstrate that there is more than a 50% likelihood of the cause being the breach of duty of the defendant. Where there are two causes this means the burden of proof is impossible to discharge leaving the claimant uncompensated often for an obvious breach of duty. Various formulations have arisen to circumvent the strict approach. In Holtby v Brigham & Cowan [2000]14the claimant was exposed to asbestos during his working life and suffered asbestosis. He worked for the defendant for 12 years but worked for other employers who each12Performance Cars Ltd v Abrabam [1962] 1 Q.B.33-the defendant negligently damaged a motor vehicle which had previously been damaged by the negligence of another motorist; defendant held not liable for the cost of a respray because, having damaged an already damaged car, his neglig ence was not the cause of loss.13See Gary Slapper, LLB, LLM, PhD, PGCE (law) and David Kelly, BA, BA(law), PhD; English Law; Cavendish Publish Limited (2000) at P41914Holtby v Brigham & Cowan [2000] 3 A LL ER 421exposed him to asbestos for periods of up to five years. The trial judge assessed his damages and then reduced the damages to reflect the number of years the claimant had worked for the defendant. The claimant‟s appeal was dismissed the defendant was only liable in proportion to the exposure they had actually caused.15In fact, every case will vary on its own facts, so the court must apply the proper principle according the situation of the case.RemotenessLike causation, the remoteness issue is relevant to all torts in which proof of damage is essential, or in which the claimant is seeking compensation for specific losses. It must be understood that, even where causation is established, the defendant will not necessarily be liable for all of the damage resulting from the breach. Remoteness of damage is often viewed as an additional mechanism of controlling tortious liability. There are two broad approaches to the problem of remoteness. The first takes the view that a defendant is liable for all the direct consequence of his negligence of his negligence, no matter how unusual or unexpected. This treats remoteness as essentially a question of causation. At one time this was thought to be the appropriate rule in the negligence,16and it remains the test in action for trespass to the person.17 The second approach holds that a person is only responsible for consequence that could reasonably have been anticipated, even where he has undoubtedly caused the damage in question.181.Direct consequence testThis is the test for remoteness of damage that held sway until 1961. It was laid down by the Court of Appeal in the case Re Polemis and Furness, Withy & Co Ltd [1921].15See < /Causation.php>16Re Polemis and Furness, Withy & Co. Ltd [1921] 3 K. B. 56017The defendant is liable for all the consequence which are a direct result of the tortuous act whether they are foreseeable or not: “In battery, however, any and all damage is recoverable, if it results from the wrongful act. The limitation devices of foresight and remoteness are not applicable to intentional torts, as they are in negligence law” per Linden J. in Allan v New Mount Sinai Hospital (1980) 109 D.L.R. (3d) P634 P64318See Michael A. Jones B.A., LL.M., Ph. D. Medical Negligence; Sweet & Maxwell [1991] at P191A ship carrying tins of benzene in its hold, some of which were leaking, was being unloaded. Through the carelessness of the stevedores a heavy plank which lay across the open hold was dislodged and fell into the hold causing a spark which ignited the benzene vapours in the hold, and a fire resulted which destroyed the whole ship. The Court of Appeal held that the stevedore‟s employers were vicariously liable for the stevedore‟s negligence and that the damage was too remote. The test for remoteness of damage in negligence actions was stated to be whether the damage was direct consequence of breach of duty. An indirect consequence was damage due to the operation of independent cause having no connection with the negligent act, except that they could not avoid its results.19It is important to note that in order for the defendant to be liable at all, he must owe the claimant a duty of care. For a duty to arise, some damage to the claimant must be reasonably foreseeable. In the case “polemics”, some damage was foreseeable as a result of the plank being dropped. Duty was therefore established. The explosion was a direct consequence of the breach of duty; therefore the damage was not too remote, although the kind of property damage that occurred could not have been foreseen.20The difficulty about the direct consequence test for determining whether harm is too far removed from carelessness to render a careless person liable for that harm is that it provides, on the one hand, that a person may be liable for consequences which may be completely unforeseeable, and so may be too wide. On the other hand, it suggests that a person is not liable if there is some subsequent action which contributes to the harm, and so may be too narrow.212.Reasonable foreseeability testAs time went on the tort of negligence grew, the direct consequence test came to be seen as rather hard on defendant. As a result, a new test was laid down in Overseas19See Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 56020See John Cooke Law of Tort 9th Pearson Longman [2009] at P179-18021See<p.ac.fj/Courses/LA203_Torts_1/LA203_neg_causation.html#_Toc469730824>Tankship (UK) v Morts Dock & Engineering Co (The Wagon Mound No 1) [1961],22 which is usually referred to as Wagon Mound No.1. In that case, the defendants were the owner of a ship which was loading oil there, and owing to the negligence of their employees, some of it leaked into the water and spread, forming a thin film on the surface. Within hours, the oil had spread to a neighbouring wharf, owned by the claimant, where another ship was being repaired by the welders. It caused some damage to the slipway, but then a few days later, further and much more serious damage was caused when the oil was ignited by sparks from the welding operations. The Privy Council expressly rejected this approach and held that reasonable foreseeability, not directness, of damage is the test that should be adopted to determine remoteness of damage. The direct consequence test was said by the Privy Council to be unjust in that it made a person liable for all damage directly resulting from negligence no matter how unforeseeable, and further it was illogical since reasonable foreseeability was used to determine the question of whether there existed a duty of care and the same factor should be used to determine the extent of liability for a breach of that duty.233．Novus actus interveniensThe defendant‟s breach of duty may be cause of the claimant‟s damage in the sense that it satisfies the …but for‟ te st., but some other factual cause, intervening after the breach, may be regarded as the sole cause of some, or all, of the claimant‟s damage. Where this happens the intervening cause is known as a novus actus interveniens and breaks the chain of causation between the defendant and the claimant. Any damage occurring after the novus actus interveniens will be regarded as being too remote. There are two broad approaches to this problem. The first asks whether the act was reasonable in this circumstance, which refers to the voluntariness of the act, not whether it was careless. The more voluntary the act the less reasonable it is, and therefore the more likely to be regarded as a novus actus, but even deliberate conduct22See Overseas Tankship (UK) v Morts Dock & Engineering Co (The Wagon Mound No 1) [1961] AC 38823See Catherine Elliott and Frances Quinn Tort Law 6th Pearson Longman (2007) at P105may be “involuntary” in this sense, where, for example, a person is forced to make some conscious response to a situation brought about by the defendant‟s negligence.24 The second approach looks to the foreseeability of the intervention. On this view, even where the intervening act is unseasonable it will not necessarily be treated as breaking the chain of causation.25The chain of causation may be broken by a natural act; by the act of a third party where the act is voluntary and unlikely to happen; or by the act of the claimant where the claimant‟s behaviour after the breach of duty is unreasonable.(1)A natural eventThe court will generally be reluctant too find that a natural event breaks the chain of causation as the claimant has no one else to sue if the defendant is exonerated. If the defendant negligently starts a fire and strong winds then cause the flames to spread to the claimant‟s property, the court will not find that the winds break the chain of causation. However, if the natural event causes damage simply because the breach of duty has placed the claimant or their property in a position where the damage can be caused, the chain of causation will be broken, unless the natural event was likely to happen.(2)Intervening act of a third partyWhere the defendant‟s breach of duty is followed by a third party act which is also a cause of the claimant‟s damage, the court has to determine the extent of the defendant‟s liability. If the third party act is held to be a novus actus interveniens, then the defendant is not liable for any damage occurring after the act. where the defendant‟s duty was so guard the claimant or their property from a third party, then the third party act will not relive the defendant from the consequence of their negligence.26.The third party act must be voluntary in order to amount to a novus actus interveniens.The captain‟s action in the case The Oropesa27was not voluntary in this sense. Where the third party act is negligent, it may or may not break the chain 24Emeh v Kensington and Chelsea Area Health Authority [1985] Q.B.1012; [1984] 3A ll E.R.1044.25See Michael A. Jones B.A., LL.M., Ph. D. Tort Law Library Medical Negligence; Sweet & Maxwell [1996] at P26526See John Cooke Law of Tort 9th Pearson Longman [2009] at P190-19127The Oropesa [1943] P32of causation. Certainly where the subsequent action of another person is illegal or careless or wrongful it seem that it will normally render any resulting harm as too remote even if it is reasonably foreseeable. On the other hand where the subsequent action of a third person is a normal reasonable response of a reasonable person to the results of the negligence of the defendant Lord Reid‟s statement may be more acceptable. In the case of a normal response to a negligent act, if it is very likely to occur, it seems that it will not be regarded as rendering the consequences of that person‟s action too remote from the original wrongdoing.(3)Act of the claimantCases where the claimant‟s conduct is called into question are normally concerned with contributory negligence. Where the claimant has been found to have been contributorily negligent, their damage will be reduced by the proportion that they are found be to blame for their damage. However, the defendant may allege that the claimant‟s conduct breaks the chain of causation, so as to render the defendant not liable for some, or all, of the claimant‟s damage. In England and Wales it is clear that if the subsequence act of the plaintiff is unreasonable, then it will cut off liability of an earlier wrongdoer. On the other hand, if a person suffers injury through the negligence of the defendant and this produces a disability or weakness which makes the plaintiff susceptible to further injury, the defendant will be liable for that further injury.Causation and remoteness are issues which may be of crucial importance in any context within which tortuous liability is in question. They represent different stages in the process of linking the defendant‟s breach of duty with the claimant‟s damage. Many basic rules and text are applied in different cases according to different situations. It is important to consider all the factors in one case when selecting a appropriate approach to judge.Bibliography List1. Books(1) See Christian Witting, Liability For Negligent Misstatements, Oxford University Press (2004) at P290(2) See Michael A. Jones Textbook On Tort 8th Oxford University Press(2002) atP224-225(3)See Michael A. Jones Textbook On Tort 8th (2002) Oxford University Press atP230(4)See Michael A. Jones B.A., LL.M., Ph. D. Tort Law Library Medical Negligence; Sweet & Maxwell [1996] at 255-256(5) See John Cooke Law of Tort 6th Pearson Longman [2003] at P135-136(6) See Gary Slapper, LLB, LLM, PhD, PGCE (law) and David Kelly, BA, BA(law), PhD; English Law; Cavendish Publish Limited (2000) at P419(7) See Michael A. Jones B.A., LL.M., Ph. D. Medical Negligence; Sweet & Maxwell [1991] at P191(8) See John Cooke Law of Tort 9th Pearson Longman [2009] at P179-180(9) See Catherine Elliott and Frances Quinn Tort Law 6th Pearson Longman (2007) at P105(10) See Michael A. Jones B.A., LL.M., Ph. D. Tort Law Library Medical Negligence; Sweet & Maxwell [1996] at P265(11) See John Cooke Law of Tort 9th Pearson Longman [2009] at P190-1912. Internet sources(1) See < /Causation.php> accessed 4 Dec 2010(2)See<p.ac.fj/Courses/LA203_Torts_1/LA203_neg_causation.ht ml#_Toc469730824> accessed 5 Dec 2010。

英美法律制度 Tort Law

For example, the tort of battery requires proof of intent to cause contact with another person. While, the intent in false imprisonment is to confine another person. But in general, the intentional torts are not defined in such a way as to require defendant to have intended to harm the plaintiff.

Example: Defendant points a water gun at Plaintiff, making it seem like a robbery, when in fact it is a practical joke. If Defendant has intended to put Plaintiff in fear of imminent harmful bodily contact, the "intent" for assault is present, even though Defendant intended no "harm" to Plaintiff. In Vosburg v. Putney 1891, a schoolboy deliberately swung his foot across the aisle to touch a classmate. The contact caused serious injury that the schoolboy never expected. And he was held liable for the damages, because we don’t require an intent to harm to constitute a battery.

Tort 侵权法律英语术语

Tort 侵权-法律英语术语Tort 侵权-法律英语术语由站整理。

1.In tort law the duty is imposed by the law.在侵权法中，责任是由法律规定的。

2.Some jurisdictions have established this tort to provide a remedy for malicious deeds.有些司法管辖区规定了此种侵权行为，目的是对恶意行为受害人提供救济。

3.Such tort-feasors are jointly and severally liable.此种侵权行为为要承担共同和连带责任。

4.The law of tort provides rules of conduct that regulate how members of society interact and remedies if the rules are breached and damage is suffered.侵权行为法提供行为规那么，标准社会成员的互相交往以及在该规那么被违背和损害发生是，如何进展救济。

5.The law of tort aims to compensate those who have suffered as a result of a tort.侵权行为法的目的在于补偿被损害人。

6.Tort law is a branch of civil law that is connected with civil wrongs，but not contract actions.侵权法属于民法的一部分，其与民事过错相关，与合同行为无关。

7.Tort liability for negligence presupposes causality between the negligent act and the injury to person or property.过失侵权责任以过失行为与对人身或财产的侵权之间的因果关系为前提。

澳大利亚商法Lecture 6 - Torts

Promises: Interests covered are wider, covering both person and property
Tortious duty is imposed independently of the consent of the parties, though rights and duties may be varied contractually
Contract Law
Concerned with having the promises of other performed
Agreement:
While contractual duty mainly comes from agreement of the parties, it can be imposed by law
11
Elements of Negligence

In order to succeed in a negligence action the plaintiff must prove 3 elements:
1. The defendant owed them a ‘duty of care’;
2. the defendant ‘breached the duty of care’ owed to the plaintiff; and 3. the plaintiff suffered damage as a result of that breach (’causation’), and the damage was not too ‘remote’.

Compensation is not always in the form of damages (monetary compensation) as damage suffered can take many forms apart from physical injury. In some instances such as damage to reputation (Defamation) the remedy sought is an Injunction, which prevents a person from taking a particular action. Legislation provides a number of compensation alternatives other than suing in tort:

沙丽金版法律英语

精选ppt课件
15
IIED
Definition
★short for intentional infliction of emotional distress
★referred to as the tort of outrage in some jurisdictions
intentional conduct that results in extreme emotional distress
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5
General
Transferred intent
Transferred intent is a doctrine used in both criminal law and tort law when the intention to harm one individual inadvertently causes a second person to be hurt instead.
Intent
Intent is most often proved through circumstantial evidence—the defendant’s conduct, in the context of his or her surroundings and what he or she presumably knew and perceived.
whipping a horse on which a plaintiff was riding, causing the plaintiff to fall and be injured
(a nurse) failing to warn a blind patient that he is headed toward an open window, causing him to fall and injure himself