Torts Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    2
  • Words:
    1374

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26th August, 2011

Law of Tort

In most cases, tort is often interpreted in the context of criminal wrongs though the two are very different and hence the need to draw the boundary between the two. Tort refers to the wrongs done by an individual to another and therefore not enforceable by police and tortuous acts are taken to a judge in a court of law. On the other hand, criminal wrongs are the wrongs committed by an individual to the society in general and thus are the concern of the state and can be enforced by the police. However, most torts constitute to criminal wrongs. Individuals to whom civil wrongs are committed can sue the ones who commit the tortuous acts and the remedies to the wrongs are compensation (Calhan, 2003).

The law of tort has continually evolved over time from the simple definition of trespass to another person land to include the three mainly categories of torts namely; negligence, intentional torts and Quasi — Torts. Torts law over time has laid more emphasis on the claimant which is a clear indication of the move from the traditional ideology of concentrating on the trespasser rather than compensating the claimant (Calhan, 2003). Under torts law, the defendant is compelled to compensate the claimant or the plaintiff for injury the defendant may have caused to claimant personal property or for any action that resulted to the plaintiff being hurt. It is worthwhile to note that the Australian tort law borrows heavily from the common law of UK.

Possible trespass actions that Nick may bring against James

There are various possible actions that Nick can take on James. In our case, James is seen to commit an intentional tort whereby he intentionally follows Nick without his consent to his home and locks him up. It is intentionally that James locks the shed where Nick had gone to clean up his shoes and leaves him there stranded and therefore this constitutes an intentional act. While the intentionality of James action may be debated about, we can therefore argue by questioning out why he left him in the shed stranded and why he would go to Nick’s house only to lock the shed which clears our doubts as to whether James actions were intentional. James actions therefore appear calculated with the intentions of harming Nick. It is evident that Nick suffered emotional anguish as a result of James action for he waited an hour before a friend of his came and opened the shed for him and this brings us to another interference caused by James on Nick; the interference of false imprisonment. Nick’s freedom of movement had been interfered with for an hour and this interference can be referred to as false imprisonment which refers to any act that can frankly or deliberately place a total moderation upon the claimant’s liberty of movement (Best & Barnes, 2003). Nick could argue before a judge that there was somewhere he wanted to go and did not because James locked him up. Therefore in a court of law, Nick can prove that the actions taken by James amounted to tort and thus liable for compensation for the damage caused by James in a court of law.

James also commits a tort in the form of assault whereby he walked up to Nick and pushed him with both hands in the chest after Nick’s team won. James can defend himself in a court of law by arguing that he was in contact with Nick in a football match and therefore both of them had consent which is allowed in such cases. However, pushing Nick with both hands because his team was defeated by Nick’s team cannot amount to consent because the contact between Nick and James was beyond the contact they normally have while playing for it involved pushing with both hands and therefore Nick is liable for compensation. In addition, it was after Nick’s team won that James felt compelled to push Nick in the chest.

Trespass to land in the case of Nick and James is very debatable for it is evident that the two are friends since high school and therefore a visit from a friend may not be interpreted to constitute trespass. However, trespass to land is evident where James after entering into Nick’s compound commits a wrong of locking him up. James may argue in a court of law that as a friend to Nick, he had the right to visit him but on the contrary not commit the wrong. Though James could have visited his friend Nick with the excuse that they were high school friends, he had no right to lock him up which is interference in the case of Nick. In addition, the law recognizes trespassing as when an entity deliberately trespasses another person’s land without a legal justification (Best & Barnes, 2003). Nick therefore can sue James even if no definite harm was done. On the contrary and in defense, James can argue that where Nick lived there was no gate and fence and therefore he could not tell whether he was trespassing into Nick’s property as in regard to trespass to land. This one cannot result to any action as the law does not take into consideration ignorance of any kind. However, Nick on the other hand, has the duty of fencing his property in order not to provoke trespassers’ who may not know that they are on personal and private property. Among the legal actions that Nick should take against James is warm him not to ever trespass his home again.

Possible actions that James may bring against Nick

Trespass is also seen where Nick threatens James with “I know where you live Do that again and I’ll make you pay big time” In the law of tort, threats to another person constitute to trespass and Nick’s words to James are a clear indication that Nick could be forced to take action against James were James to push Nick again for having won the match. There is possible action in the case of James where he can sue Nick for threatening him.

On the same note, James can argue that he was forced to lock Nick in the shed from the way Nick threatened him and therefore self defense or rather Nick provoked him to lock him up with his earlier threats. In this case while James assaulted Nick, he can argue that in a court of law, that Nick acted in a way that caused him too directly and deliberately make him to realistically capture that a battery was about to be imposed by the Nick who had threatened him and therefore there is cause for action. However, this is not a good argument as trespass is excused in cases of emergency or in cases where there is need to save someone live or save someone property, for instance one can see the neighbor’s house burning and in turn rush to help which is not regarded as trespass. James even if he defends himself by saying that Nick provoked him, his assumptions and premise cannot hold ground for there was no emergency in protecting himself from Nick.

I would advise Nick to file a civil lawsuit against James. However, Nick will have to incur his own expenses in filling the lawsuit for law enforcers like the police are not involved. Where the judge will rule in favor of Nick, Nick can recover the damages even if the harm caused was emotional distress when he was locked up for one hour in shed. Most importantly, the civil lawsuit against James would work best in deterring him from repeating such actions in future whenever there is a football match between the two teams and Nick’s team wins again.

In conclusion, both parties can take possible actions against one another. Nick can take action against James for trespass of personal property and assault while James can take action against Nick for trespass of threatening him.

References

Best, A. & Barnes, D. (2003). Basic Tort Law: Cases, Statutes and Problems. New York. Aspen

Calhan, A. (2003): A Revisionist History of Tort Law. Durham. N. C.: Carolina Academic Press