Editing Tort (section)

===Categories of torts in common law jurisdictions===
{{Main article|Outline of tort law}}
Torts may be categorised in several ways, with a particularly common division between negligent and intentional torts. [[Quasi-tort]]s are unusual tort actions. Particularly in the United States, "collateral tort" is used to refer to torts in [[labour law]] such as [[intentional infliction of emotional distress]] ("outrage");<ref>[[Martha Chamallas|Chamallas M]], Vriggins JB. (2010). [https://books.google.com/books?id=mOCtul09xHMC&pg=PA68 The Measure of Injury: Race, Gender, and Tort Law, p. 68].</ref> or [[wrongful dismissal]]; these evolving [[cause of action|causes of action]] are debated and overlap with [[contract law]] or other legal areas to some degree.<ref name=Gergen>Gergen M. (1995). [http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2468&context=facpubs Grudging Defense of the Role of the Collateral Torts in Wrongful Termination Litigation Employment]. ''Texas Law Review''.</ref>  In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, [[workers' compensation]] laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside the traditional common law torts. These are loosely grouped into quasi-torts or liability torts.<ref name="Atiyah" />

====Negligence====
{{Main article|Negligence}}
The tort of negligence is a cause of action leading to relief designed to protect legal rights{{efn|Depending on jurisdiction, this includes those of personal safety, property, and intangible economic interests or noneconomic interests such as the tort of [[negligent infliction of emotional distress]]}} from actions which, although unintentional, nevertheless cause some form of legal harm to the plaintiff. In order to win an action for negligence, a plaintiff must prove: duty, breach of duty, causation, scope of liability, and damages. Further, a defendant may assert various defences to a plaintiff's case, including comparative fault and assumption of risk. Negligence is a tort which arises from the breach of the [[duty of care]] owed by one person to another from the perspective of a [[reasonable person]]. Although credited as appearing in the United States in ''[[Brown v. Kendall]]'', the later Scottish case of ''[[Donoghue v Stevenson]]'' [1932] AC 562, followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions.<ref>Ferrari F. (1994). [http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1003&context=annlsurvey Donoghue v. Stevenson's 60th Anniversary]. ''Annual Survey of International & Comparative Law''.</ref> In ''Donoghue'', Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence.

In most common law jurisdictions, there are four elements to a negligence action:<ref>{{cite journal|last1=Boehm|first1=Theodore R.|title=A Tangled Webb - Reexamining the Role of Duty in Indiana Negligence Actions|journal=Indiana Law Review|date=2003|volume=37|issue=1|pages=1–20 |doi=10.18060/3628 |url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/indilr37&div=8&id=&page=|access-date=22 September 2017}}</ref>
#duty: the [[defendant]] has a duty to others, including the [[plaintiff]], to [[duty of care|exercise reasonable care]]{{efn|For example, in the business realm, the auditor has a duty of care to the company they are auditing – that the documents created are a true and reliable representation of the company's financial position. However, as per [[Esanda Finance Corporation Ltd v Peat Marwick Hungerfords|Esanda Finance Corporation Ltd v. Peat Marwick Hungerfords]], such auditors do NOT provide a duty of care to third parties who rely on their reports. An exception is where the auditor provides the third party with a privity letter, explicitly stating the third party can rely on the report for a specific purpose. In such cases, the privity letter establishes a duty of care.<ref>{{Cite web |last=Sadler|first=Pauline|date=2009|title=Liability for Negligent Misrepresentation in the Finance Industry|url=http://www.austlii.edu.au/au/journals/LegIssBus/2009/3.pdf}} (2009) 11 Legal Issues in Business 17.</ref>}}
#breach: the defendant breaches that duty through an act or culpable omission
#damages: as a result of that act or omission, the plaintiff suffers an injury
#causation: the injury to the plaintiff is a reasonably foreseeable{{efn|The case ''[[Chapman v Hearse]]'' added to the precedent of negligence where in previous cases reasonable foreseeability was applied narrowly to include all predictable actions, ''Chapman v Hearse'' extended this to include all damages of the same nature which could be reasonably foreseen.<ref>''Chapman v Hearse'' (1961) 106 CLR 112</ref>}} consequence of the defendant's act or omission under the [[proximate cause]] doctrine.{{efn|Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.<ref name="March v Stamare">{{cite AustLII|HCA|12|1991|litigants=[[March v Stramare (E & MH) Pty Ltd]] |parallelcite=(1991) 171 [[Commonwealth Law Reports|CLR]] 506 |courtname=auto}}.</ref><ref>[http://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts12.htm Ch. 12, Proximate or legal cause] LexisNexis Study Outline.</ref> The defendant may argue that there was a prior cause or a superseding intervening cause. A common situation where a prior cause becomes an issue is the personal injury car accident, where the person re-injures an old injury. For example, someone who has a bad back is injured in the back in a car accident. Years later, he is still in pain. He must prove the pain is caused by the car accident, and not the natural progression of the previous problem with the back. A superseding intervening cause happens shortly after the injury. For example, if, after the accident, the doctor who works on you commits malpractice and injures you further, the defendant can argue that it was not the accident, but the incompetent doctor who caused your injury. [https://web.archive.org/web/20120615233606/http://www.jud.ct.gov/ji/Civil/part3/3.1-8.htm]}}

Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm.<ref name="owen">{{cite journal|last1=Owen|first1=David G.|title=The Five Elements of Negligence|journal=Hofstra Law Review|date=Summer 2007|volume=35|issue=4|page=1671|url=http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|access-date=22 September 2017}}</ref> Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages.<ref name="owen"/> However, at their heart, the various definitions of what constitutes negligent conduct are very similar. Depending on jurisdiction, [[product liability]] cases such as those involving warranties may be considered negligence actions or fall under a separate category of [[strict liability]] torts. Similarly, cases involving environmental or consumer health torts which other countries treat as negligence or strict liability torts are treated in [[Tort law in India|India]] as [[absolute liability]] torts.

In establishing whether a duty of care exists, different common law jurisdictions have developed a variety of distinct but related approaches, with many jurisdictions building on the test established in ''[[Anns v Merton LBC]]''. In Singapore, the current leading case is ''[[Spandeck Engineering v Defence Science and Technology Agency]]'', which builds on ''Anns'' by establishing a two step test comprising an analysis of [[proximate cause]] and [[public policy doctrine|public policy]] as a universal test, independent from the individual circumstances of a given case, for determining the existence of a duty of care. The Supreme Court of Canada established a similar test in the context of assessing damages for [[pure economic loss]] owing to negligence derived from ''Anns'' which consists of a two step examination of the existence of a sufficiently proximate relationship between the parties and public policy considerations; however, the Canadian test is more sensitive to the individual circumstances of a given case and the first step is generally deemed to be met where a case falls into one of three [[Canadian tort law#Negligence|sets of circumstances recognised by precedent]] while the Singaporean test is independent of precedent. In English tort law, ''[[Caparo Industries plc v Dickman]]'' established a tripartite test for the existence of a duty of care per which harm must be reasonably foreseeable as a potential result of the defendant's conduct; the parties must be in a relationship of proximity; and it must be fair, just, and reasonable to impose such a duty.

====Intentional torts====
{{Main article|Intentional tort}}
Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories:
*[[Trespass#Trespass to the person|Torts against the person]] include [[assault (tort)|assault]], [[battery (tort)|battery]], [[false imprisonment]], [[intentional infliction of emotional distress]], and fraud, although the latter is also an [[economic tort]].
*Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognised include trespass to land, trespass to chattels (personal property), and conversion.
*Dignitary torts are a category of intentional tort affecting the honour, dignity, and reputation of an individual and include: [[Defamation]],{{efn|Defamation is tarnishing the reputation of someone; it has two varieties, ''slander'' and ''libel''. Slander is spoken defamation and libel is printed or broadcast defamation. The two otherwise share the same features: making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the First Amendment to the Constitution of the United States, or Article 10 of the European Convention of Human Rights. Related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.}} [[invasion of privacy]], [[breach of confidence]], torts related to the justice system such as [[malicious prosecution]] and [[abuse of process]], and torts pertaining to sexual relations that are considered obsolete in most common law jurisdictions such as [[alienation of affection]] and [[criminal conversation]].
An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy the intent requirement.<ref>{{cite web|url=https://nationalparalegal.edu/public_documents/courseware_asp_files/torts/againstProperty/transferredIntent.asp|title=Transferred Intent – LawShelf Educational Media|website=nationalparalegal.edu|archive-url=https://web.archive.org/web/20171010010523/https://lawshelf.com/courseware/entry/transferred-intent|archive-date=10 October 2017}}</ref> Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.

====Nuisance====
{{Main article|Nuisance}}
"Nuisance" is traditionally used to describe an activity which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private nuisance) or the general public (public nuisance). The claimant can sue for most acts that interfere with their use and enjoyment of their land. In English law, whether activity was an illegal nuisance depended upon the area and whether the activity was "for the benefit of the commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet.<ref name=Nuisance>Cavert W. (2009). [https://www.academia.edu/202432/A_Right_to_Clean_Air_Coal_Smoke_Property_and_Nuisance_Law_in_Early_Modern_London Right to Clean Air? Coal Smoke, Property, and Nuisance Law in Early Modern London] World Conference on Environmental History.</ref> The case ''Jones v Powell'' (1629) provides an early example, in which a person's professional papers were damaged by the vapors of a neighboring brewery. Although the outcome of this case is unclear,<ref name=Nuisance/> Whitelocke of the [[Court of King's Bench (England)|Court of the King's Bench]] is recorded as saying that since the water supply in area was already contaminated, the nuisance was not actionable as it is "better that they should be spoiled than that the commonwealth stand in need of good liquor".{{Citation needed|date=March 2013}}

In English law, a related category of tort liability was created in the case of ''[[Rylands v Fletcher]]'' (1868): strict liability was established for a dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. In ''[[Cambridge Water Co Ltd v Eastern Counties Leather plc]]'' (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs.<ref name="ElworthyHolder">{{cite book|last1=Elworthy|first1=Sue|last2=Holder|first2=Jane|title=Environmental Protection|date=1 June 1997|publisher=Cambridge University Press|isbn=978-0-406-03770-1|page=67|url=http://www.cambridge.org/us/academic/subjects/law/law-general-interest/environmental-protection-text-and-materials?format=PB&isbn=9780521613538|access-date=8 August 2016|archive-url=https://web.archive.org/web/20160808211159/http://www.cambridge.org/us/academic/subjects/law/law-general-interest/environmental-protection-text-and-materials?format=PB&isbn=9780521613538|archive-date=8 August 2016}}</ref> The ''Rylands'' rule remains in use in England and Wales. In Australian law, it has been merged into negligence.<ref>''[[Burnie Port Authority v General Jones Pty Ltd]]''</ref>

====Economic torts====
{{Main article|Economic tort|Misrepresentation}}
Economic torts{{efn|Also referred to as "business torts"}} typically involve commercial transactions, and include [[tortious interference]] with trade or contract, fraud, injurious falsehood, and negligent misrepresentation. Negligent misrepresentation torts are distinct from contractual cases involving misrepresentation in that there is no [[privity]] of contract; these torts are likely to involve [[pure economic loss]] which has been less-commonly recoverable in tort. One criterion for determining whether economic loss is recoverable is the "foreseeability" doctrine.<ref>Christie GC. (1996). [http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1739&context=faculty_scholarship The Uneasy Place of Principle in Tort Law]. ''Duke Law Review''.</ref> The economic loss rule is highly confusing and inconsistently applied<ref>Barton RJ. (2000). [http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1538&context=wmlr Drowning in a Sea of Contract: Application of The Economic Loss Rule to Fraud and Negligent Misrepresentation Claims]. ''William and Mary Law Review''.</ref> and began in 1965 from a California case involving strict liability for product defects; in 1986, the U.S. Supreme Court adopted the doctrine in ''East River S.S. Corp. v. Transamerica Deleval, Inc''.<ref name=":0">{{cite journal |last=Andrew|first=Gray|year=2006|title=Drowning in a Sea of Confusion: Applying the Economic Loss Doctrine to Component Parts, Service Contracts, and Fraud |url = https://openscholarship.wustl.edu/law_lawreview/vol84/iss6/4/ |journal=Washington University Law Review |language=en|volume=84|issue=6|issn=2166-7993}}</ref> In 2010, the [[Washington Supreme Court|supreme court of the U.S. state of Washington]] replaced the economic loss doctrine with an "independent duty doctrine".<ref>{{cite web |url = https://apps.americanbar.org/litigation/litigationnews/top_stories/013111-economic-loss-independent-duty-doctrine.html|title=Washington Supreme Court Reassesses Economic Loss Rule {{!}} Litigation News {{!}} ABA Section of Litigation |website=apps.americanbar.org |archive-url = https://web.archive.org/web/20160703164548/https://apps.americanbar.org/litigation/litigationnews/top_stories/013111-economic-loss-independent-duty-doctrine.html |archive-date=3 July 2016|access-date=25 March 2018}}</ref>

Economic antitrust torts have been somewhat submerged by modern [[competition law]]. However, in the United States, private parties are permitted in certain circumstances to sue for anticompetitive practices, including under federal or state statutes or on the basis of common law [[tortious interference]], which may be based upon the [[Restatement of Torts, Second|Restatement (Second) of Torts]] §766.<ref>Saferstein HI. (1990). [https://www.jstor.org/stable/40841303 The Ascendancy of Business Tort Claims in Antitrust Practice. ''Antitrust Law Journal''.]</ref>

Negligent misrepresentation as tort where no contractual [[privity]] exists was disallowed in England by ''[[Derry v Peek]]'' [1889]; however, this position was overturned in ''[[Hedley Byrne v Heller]]'' in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant.<ref name=Ballam/> United States courts and scholars "paid lip-service" to ''Derry''; however, scholars such as [[William Prosser (academic)|William Prosser]] argued that it was misinterpreted by English courts.<ref name=Ballam/> The case of ''[[Ultramares Corporation v. Touche]]'' (1932) limited the liability of an [[auditor]] to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s.<ref name=Ballam/> The [[Restatement of Torts, Second|Restatement (Second) of Torts]] expanded liability to "foreseeable" users rather than specifically identified "foreseen" users of the information, dramatically expanding liability and affecting professionals such as accountants, architects, attorneys, and [[surveying|surveyors]].<ref name=Ballam/> As of 1989, most U.S. jurisdictions follow either the ''Ultramares'' approach or the Restatement approach.<ref name=Ballam>Ballam DE. (1989). [http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1598&context=llr The Expanding Scope of the Tort of Negligent Misrepresentation]. ''Loyola of Los Angeles Law Review''.</ref>

The [[tort of deceit]] for inducement into a contract is a tort in English law, but in practice has been replaced by actions under [[Misrepresentation Act 1967]].<ref>Chen-Wishart M. (2007). [https://books.google.com/books?id=CHYo04GovjcC&pg=PA40 Contract Law]. ''Oxford University Press''.</ref> In the United States, similar torts existed but have become superseded to some degree by contract law and the pure economic loss rule.<ref name=Lens2011/> Historically (and to some degree today), fraudulent (but not negligent<ref name=Lens2011/>) misrepresentation involving damages for economic loss may be awarded under the "benefit-of-the-bargain" rule (damages identical to [[expectation damages]] in contracts<ref name=Lens2011/>) which awards the plaintiff the difference between the value represented and the actual value.<ref name=Lens2011/> Beginning with ''Stiles v. White'' (1846) in Massachusetts, this rule spread across the country as a majority rule with the "out-of-pocket damages" rule as a minority rule.<ref name=Lens2011>Lens JW. (2011). [http://www.law.ku.edu/sites/law.drupal.ku.edu/files/docs/law_review/v59/02-Lens_Final.pdf Honest Confusion: The Purpose of Compensatory Damages in Tort and Fraudulent Misrepresentation] {{Webarchive|url=https://web.archive.org/web/20121123155733/http://www.law.ku.edu/sites/law.drupal.ku.edu/files/docs/law_review/v59/02-Lens_Final.pdf |date=23 November 2012 }}. ''Kansas Law Review''.</ref> Although the damages under the "benefit-of-the-bargain" are described as compensatory, the plaintiff is left better off than before the transaction.<ref name=Lens2011/> Since the economic loss rule would eliminate these benefits if applied strictly, there is an exception to allow the misrepresentation tort if not related to a contract.<ref name=Lens2011/>