TO INCLUDE OR NOT INCLUDE IN COMMON LAW?

INTRODUCTION

A common law system is a legal system that provides precedent for judges in future decisions of controversial cases. Common law courts support their judgments on preceding pronouncements rather than on law ratifications (Norman 2000). The common law judges depend on decisions made by their predecessors to avoid a wide standard of controversies to guide them in using the law. The judges refer to past reports and rulings under the doctrine of Stare Decisis which makes their decisions to be considered as persuasive authority. A tort which presents remedy for emotional destruction deliberately caused but does not lead to a recognized psychiatric harm could and should be developed at common law. On the foundation from Wilkinson v. Downtown (1897) Q.B.D. 57[1] case, the defendant told the claimant a joke about her husband’s breaking both of his legs which gave the plaintiff a total shock and she became seriously ill. It was held that the defendant intentionally caused the claimant physical injury on her right to personal safety. Though the defendant did not wish these to happen, the court ruled that the outcome was not too remote and hence anybody could be hurt by such news (Frederic 2003).

The Wilkinson v. Downtown (1897) Q.B.D. 57  is approved in Javier v Sweeney (1 919) 2 KB 316[2]where false words and threats anticipated to cause, uttered with intention are likely to cause physical injury to a person to whom uttered are applicable. Two private detectives who were the defendants, one of them designed to inspect certain letters to which he had a mind that it belonged to claimant and thus, a maid servant had a way to get to them. He issued instructions to the other detective, his assistant to persuade the claimant to show him the letters asserting that the claimant would be compensated for the effort. The assistant endeavored to induce the claimant by intimidation and untrue statements as a result the claimant fell ill from nervous blow. It was held that the assistant was performing within the authority of his employment hence both defendants were responsible (Roscoe & David 2000; 2003).

Intentional Torts

I)                   Battery and consent

Occurs when the defendant act intentionally to cause harm or unpleasant contact to the plaintiff. Battery involves harmful contact to the victim where compensation in this scenario will be for psychological affronts. Battery requires intent and protects personal independence. As illustrated in Vosburg v. Putney 80 Wis. 523, 50 N.W 403(Wisc. 1891)[3]where Vosburg was kicked by Putney. Vosburg’s leg was previously injured and the kick worsened. It was held that since the act was intentional, the extent of the harm was not predictable. Hence victims must be taken as they are found which made Putney liable for the damages caused. Therefore, damages are paid in actual terms as there are no average terms. This case can be used as a precedent for similar case in future if developed at common law.[4]

Besides, in Mohr v. Williams 104 N.W. 12(Minn. 1905)[5]the defendant, an ear surgeon performs an ear surgery under anesthetic. The family doctor realizes that the left ear was worse than the right ear which was being operated. The surgeon concurs with him and decides to operate the left ear instead of the right ear. The plaintiff claims she did not consent to the surgery and that she was injured. It was held that this was battery. The jury ruled that if there was emergency there would have been implied consent or if the condition was found in the same place of incision. Everyone has a right to protection of his person from interference physically unless permission is granted. In this cause it was neither. The morals in this case are that one cannot fix someone’s item or physical property without consent and expect to be paid. The damages collected in this case are restoration damages if there is unambiguous benefit. Therefore such a case can only be used in the common law for future reference if need be.

Similarly, in Hudson v. Craft (1949) 204 p. 2d[6]A 18 years old Hudson entered a boxing ring and was involved in an illegal boxing match at a carnival. Hudson was injured and he claimed for damages for his injuries. In the case the prizes are awarded to winners only in a boxing match. It was held that the promoter was liable according to the laws and state codes. The laws are enacted to protect the participants in the match. The combatants are impeachable while the organizer is the offender. The organizer was therefore liable.

II) False imprisonment

It is a complete restraint upon the freedom of the claimant. There is no false imprisonment if there is an appropriate getaway way present for claimant. As illustrated in Bird v. Jones (1845) 7QB 742 p. 1007[7]a public highway was blocked for private boat race hence one could only get into part of the highway for a fee. The petitioner wanted to access but was not permitted by the defendant. The claimant climbed into the enclosure but encountered the police who could not allow him. They did not detain him or bother him but could only not let him pass. The plaintiff claimed imprisonment. It was held that there was no imprisonment but it was only obstruction of route not halting him from movement. The victim must be aware of the restraint time of confinement. False imprisonment awards for psychological, physical and economic harm resulting from the confinement. There must be barriers enclosed within a certain area and there should be use of threat and force or improper use of authority.

II)                Assault

It is a crime that causes the victim to fear of violence or issue of threats by use of force. As demonstrated in Alcorm v. Mitchell (1872) 63 III 553[8]where the defendant spat on the claimant in public. It was held that the plaintiff acted maliciously, an act of humiliation, which was highly insulting of retribution by force. Hence law must protect such cases to preserve peace. Assault is a case of chaste psychological harm. It occurs when the defendant’s behaves deliberately to cause the victim’s rational trepidation of instant harmful or offensive contract.

IV) Intentional infliction of mental distress

Occurs when the defendant by extreme outrageous conduct, deliberately or recklessly causes the victim severe mental distress. The behavior is utterly intolerable in a civilized community. As demonstrated in Mitchell v. Rochester Railway Co. (1896) 151 N.Y 107, 45 N.E 354 N.Y 864[9] Where the petitioner in crosswalk waiting to board a train when a horse came down the street, turned right and came close to the defendant that she stood between the horses head. She testified that from fright she became unconscious causing a miscarriage. It was held that the claimant cannot recover from injuries caused by the fright as there was no instant personal injury. No proximate cause and fear of flood of fake emotional distress cases. The defendant could not regulate the fear hence the results were too remote. Similarly in Dillon V, Legg p. 1042 (1968) 68 Cal 2 d 728[10] the defendant hit and killed a child as she tried to cross the street. The mother of the child sued for mental and physical suffering as a result. The sister also sued for emotional distress. Though the mother was close to the child she was not in the vicinity of danger hence her case was discharged below. It was held that for the claimant, just because she was a little further from the child did not mean she was scared. The court ruled out that the danger zone principle and claimed that it was a duty to the plaintiff. Cases of fear of slippery slope should be prohibited. The mental damage was predictable as the claimant was near the accident and they were related to the victim closely. Such cases can be applied in common law as precedents to similar cases (Chan 2005).

V) Pure economic loss

It occurs when in absence of physical harm or property damage but intentional causes of other persons as to result in a miss in business opportunity.  As demonstrated in People Express Airlines v. Consolidated Rail Corps. (1985) p. 548 100 N.J 246, 495 A.2d 107[11] the defendant railroad intentionally released ethylene oxide an explosive substance besides knowing it was a dangerous substance. The claimant business was evacuated from its airport terminal for 12 hours. It was claimed that the losses resulted from cancelled flights and incapability to undertake any reservations on the telephone. It was held that the claimant should be compensated including for economic loss as the defendant owed a duty of care as to prevent risk of causing economic loss. This harm was foreseeable

 

VI) Nuisance

It includes harm to rights and enjoyment. It may be private interference on another’s private possession or enjoyment of beneficial interest or quiet enjoyment of land. It may also be in the form of public annoyance or access to public health or safety. Personal nuisance seeks to defend one’s own land. The claimant does need to be the lawful owner or occupant while in public nuisance the person does not need to hold any interest in the property. So long as there is inappropriate interference with a right common to the entire public. As demonstrated in Indiana Harbor Belt R.R. Co. V. American Cyanamid Co. (7th Cir.1990) 916 F.2d 1174[12]A chemical manufacture conducted carried chemical in liquid form on a train they leased. The car lid broke and while the leak was stopped instantly no one knew how dangerous the chemical would be. Evacuation was conducted of the crowded Chicago suburb. The railroad commanded to take decontamination measures one mile around. The railroad sued for clean-up costs. It was held that no liability existed as the railroad could be maintained better as this could be prevented by going through the city in safe routes. Similarly in Morgan v. High Penn Oil Co.238 N.C 185, 77 S.E 2d 682 1953 N.C[13] The claimant owned a piece of land where they had a house, restaurant ant trailer accommodation. An oil refinery operated nearby in which lots of nauseating gases and odors in great quantities were emitted. It was held that the oil refinery was enjoined for continued operation. It was not nuisance as it was a lawful business. The petitioner could not enjoy their land because of the defendant’s behavior. The defendant deliberately and inappropriately caused noxious gases to escape and impaired claimant use of land.

Tort for privacy

This may occur if someone’s identity is used for the purpose of advertising or intrusion into someone’s private space physically or electronically or disclosure of embarrassing private facts or it may be publication of very offensive information about someone. As illustrated in a case where the petitioner’s picture was used to advertise baking flour without his permission; the family sued for unwanted attention which caused the girl excess embarrassment and humiliation. However, the appeal court ruled that there was no law against such actions.[14] Nevertheless, use of people’s pictures without consent causes them emotional distress and shame. Hence this should be sued under a common law through enforcing these actions through law to protect people’s public image.

Most of these torts are normally breached by media owners who expose people’s private information without their consent. Other intruders open people’s private mail or peep at individuals’ private space. These actions are not accepted by the society. Whether it is to reveal personal private facts or publish false statements, all these will be grouped under civil wrongs hence offenders must be called upon to pay for their actions (Hanford 2006). Implementation of such actions can only be done through legislatures that will enforce them into common laws by clarifying the forms of intrusions, where the remedies will be compensation.

Conclusion

From the above cases it is evident that in one way or another, the cited cases caused nervous shock and emotional torture with exception of the some of the mentioned cases. The above mentioned court rulings can be applied as precedents for future cases by judges and magistrates to make rulings on controversial decisions. It is therefore important and mandatory for the cases to be legislated under the common law as they can be used as Stare Decisis in court rulings.

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

Cantor F. Norman, Imagining the Law: Common law and the formulations of American legal

System New York Harper (2000)

Gary K. Y. Chan, Intention and unlawful Means in the Tort of Conspiracy, Singapore Journal

Of legal studies (2005)

Kellogg Frederic R., “Holmes Common Law Theory and Judicial Restraint” John Marshall

Law Review 36 p.457-505 (2003)

Peter Hanford, Non-physical damage a comparative perspective, Sidney, 2006

Pound Roscoe, The spirit of Common Law:  New Brunswick N. J transaction (2000)

Strauss David A. Common Law: Common Ground & Jefferson’s Principle Yale Law Journal

112 may 1 P. 1717-1755 (2003)