The tort law in different legal systems

History of humanity is continuous chain of conflicts and wars, unfortunately. Such is a nature of human being - to struggle for a place under the sun, sometimes with harm of another person' interests. Individual through all life collides with conflict (with neighbors, parents, friends and even State) and not always these conflicts are decided peacefully. Sometimes results of such conflicts are pitiable - damaged health, property, dignity. We cannot avoid it.

Fortunately, there are some mechanisms regulating these conflicts, directed on compromise of the parties, reimbursement of damage (physical, moral). Every State has its own "arsenal" of such mechanisms. There is one specific area of common law, named tort, which identifies circumstances in which someone who has suffered harm may obtain a remedy. In my coursework I consider not only definitions of tort and its history, but also issues, relating to the aims of tort and its remedies. I try to identify possible problems of the tort's objectives, according to different legal systems.

There are a lot of definitions of "tort", one of more recent, is given by Peter Birks: The breach of a legal duty which affects the interests of an individual to a degree which the law regards as sufficient to allow that individual to complain on his or her own account rather then as a representative of society as a whole.I think considering any legal issue it is advantageous to look at historical background of the subject. So, I want to include brief information about historical development of tort.

In the early common law, crimes and torts were not differentiated. All wrongs were classified into felonies (criminal offence) and those that were not felonies. There was also a special group of offences referred as "trespasses", within which misdemeanor and torts were mixed and it was not possible to distinguish them. The word "trespass" itself was used to mean "wrong" and has dealt mostly with civil cases. It developed during XIII century and in the end of that age was supplemented by an action of trespass "on the case" to accommodate wrongful conduct which was neither direct not forcible.

After many improvements it reached the stage where fault was the basic element in actions of trespass on the case. Since industrialization, during the XIX century the emergence of fault as a criterion of liability had dominated in the English civil liability. However then it was found inappropriate. Probably in England, the industrial revolution had its first influence on the law of tort. Railway trains were the first source of injuries and action upon the case for negligence. After a slow and gradual evolution the tort of negligence appeared and was recognized in the case of Donoghue v Stevenson2 ("neighbour test").

1 Birks "The concept of a Civil Wrong" in Owed (ed), Philosophical Foundations of Tort Law (1995) p 51. 2 Donoghue v Stevenson [1932] AC 562 There was an answer to the question "who is a neighbour?" given by Lord Atkin "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation, as being so affected, when I am directing my mind to the acts or omissions which are called into question " . It was the first statement which gained general acceptance and influenced the whole course of development of the English law relating to negligence.

Tort, through its stretched history has pursued different aims: compensation, appeasement, punishment/justice, deterrence, and efficient loss spreading of the cost of accidents. All of them are significant, but at various stages one may have been more prominent than other. Granville Williams3 identified that "these aims can overlap, but may also conflict". I will consider all of them step by step, trying to make a comparison of aims in different legal systems.

Compensation is regarded as most important function of tort law. The full compensation can be defined as full reimbursement of loss to the claimant, irrespective of defendants' fault degree. Statutory provisions require liability insurance in order to insure that there is a plenty of funds available to satisfy a judgment. Most people just want to be compensated for infringements and don't see objectives with requiring the wrongdoer to pay. "Wrongdoing" means measure of the culpability of the defendant's behavior and does not deal with its trend to impose damage on others.

Tort lawyers often regard tort as "the compensation system that serve best to the particular victim on the basis of the pre-accident situation and prognosis of his future. However, it remains expensive, unstable and dilatory". The Royal Commission on Civil Liability and Compensation for Personal Injury (1978) in England estimated that it cost 85 pence to award 1 pound of the net benefits to the victim. The tort system is unsteady because the compensation may depend on finding a wrongdoer and credible witnesses, not to mention a good lawyer. Delay also can produce injustice especially when it tends to benefit, for instance insurance companies, who can delay payments, hoping that such delay will compel plaintiff to accept low settlement.

In the Civil law of Uzbekistan there is an institution of obligations for damages (chapter 57 of Civil Code of the republic Uzbekistan). Same as in the UK compensation function is not always effective in terms of practice. Even if court has passed a resolution about the damages' compensation it does not mean that this resolution will be fulfilled. It is possible that defendant may have no property or money so as to pay to the claimant. Deprivation of his/her dwelling for a dept is not in the common practice of our courts. However there is an article which allows changing the degree of compensation by request of the defendant, if he is poor or invaliding (article 1012 of the Civil Code of Uzbekistan). On the other hand will the plaintiff feel satisfied in this case?