History / Evolution of Law of Torts The word Torts is derived from the Latin word “Tortum’ which means twisted/crooked/wrong, Tort in French corresponds to the English word wrong and the Roman expression delict. In a society when a person turns directly from the normal course of conduct to a person who injures or causes harm to another, he is considered to have committed a tort — a conduct that is twisted or crooked, A person who commits such devious acts is marked as a tortfeasor. Its different from breach of contract and trust. Tort is when the act of one party causes some harm to the other party due to negligence, carelessness on the part of another party. The one who sues is known as “plaintiff” and the one who is sued is known as ‘defendant’ Origin of Tort Law in UK Prior to 1066, the French William the Conqueror of the Norman conquest of England, the legal system was somewhat disorganized, carried out on a more or less case-by-case basis. After 1066, to assimilate the village laws that had developed over two centuries, eminent judges delegated to visit a given area, These judges, benefiting from this information, noted and applied the precepts they believed to be most impartial in their own court’s findings. Over time, these cases became what are now called legal precedents when referenced often enough. The Jaw of tort came to India via England, The law of tort came to India via England. After the Norman Conquest, French became the language spoken in the judiciary of England and thus many technical terms in English law originated from French and tort is one of them, The term ‘tort’ is based on the concept that there are certain rights for all in the society. The purpose of this atrocity law is to enforce rights and duties. The sessions during which these judges conducted trials were termed ‘assessments’ or ‘sittings? in modem terms. The place from which a judge makes judgments and sentences is still called ‘bench’. Once these precedents were set, they were intended to apply equally to every member of society, from a lord to a servant, resulting in the term common law Torts and crimes in common law originate in the Germanic system of compensatory fines for ‘wrongs, with no clear distinction between crimes and other wrongs.'”! In Anglo-Saxon law, ‘most wrongs required payment in money paid to the wronged person or their clan." Fines in the form of wite (literally "blame, fault) were paid to the king or holder of a court for disturbances of public order, while the fine of weregild was imposed on those who committed murder with the intention of preventing blood feuds.” Some wrongs in later law codes were hotleas ‘without remedy’ (e.g. theft, open murder, arson, treason against one's lord), that is, unable to be compensated, and those convicted of a botleas crime were at the king's mercy." Items or creatures which caused death were also destroyed as deodands. Alfred the Great's Doom Book distinguished unintentional injuries from intentional ones, and defined culpability based on status, age, and gender. After the Norman Conquest, fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a fort or trespass, and there arose a division between civil pleas and pleas of the crown.l!") The petty assizes (ie. of novel disseisin, of mort d'ancestor, and of darrein presentment) were Page. 700established in 1166 as a remedy for interference with possession of freehold land. The trespass action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. It arose in local courts for slander, breach of contract, or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made de cursu (available by right, not fee); however, it was restricted to interference with land and forcible breaches of the king's peace. It may have arisen either out of the "appeal of felony", or assize of novel disseisin, or replevin. Later, after the Statute of Westminster 1285, in the 1360s, the "trespass on the case” action arose for when the defendant did not direct force.I As its scope increased, it became simply “action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case. In 1401, the English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle." Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for common carrier, which arose around 1400, was also emphasised in the medieval period. Unintentional injuries were relatively infrequent in the medieval period. As transportation improved and carriages became popular in the 18th and 19th centuries, however, collisions and carelessness became more prominent in court records. In general, scholars of England such as William Blackstone took a hostile view to litigation, and rules. against champerty —and_—_maintenance and vexatious litigation existed.!""! The right of victims to receive redress was regarded by later English scholars as one of the rights of Englishmen.!""1 Blackstone's Commentaries on the Laws of England, which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word fort in a few places.) In contemporary common law jurisdictions, successful claimants in both tort and contract law must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty.!T°1 Legal injuries addressable under tort law in common law jurisdictions are not limited to physical injuries and may include emotional, economic," or reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise such varied topics as automobile accidents, false imprisonment, defamation, product _ liability, copyright infringement, and environmental pollution (toxic torts). Modem torts are heavily affected by insurance and insurance law, as many eases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with the insurance policy setting a ceiling on the possible payment.) Development of the Law of Torts in India The Law of Torts is based on the principles of ‘Common Law’ which is primarily the English Law of Torts. The law of tort is selectively enforced in Indian courts if it suits the circumstances of the Indian society. In India, the term tort has existed since the pre-independence period. Tort did not have such an important beginning under Hindu law and Muslim law compared to English law. Most of the Jaws of tort in India is adopted from the English law of Torts, However, the Indian courts before Page. 701making any application of the laws adopted from the English law of torts see whether it is compatible with Indian culture and circumstances. Using the English law in India has thus had a distinctive application. In India, the origin of torts is related to Charter of 1726, Under charter 1726 the English courts were established in three presidencies ie. Bombay, Calcutta and Madras which were known as “Mayor courts’. These courts were working under ‘Common law” full stop in India also the common law was made applicable but the directions were made to quotes that the common law is made applicable, In the application of common taw, in the application of common law, the principles of equity, justice and good conscious were being followed. Law of torts was being considered an inseparable part of the common law. This was made applicable in India in this reference but due care was taken that it applied as per the conditions, customs and traditions of India, In the case of Naval Kishore vs, Rameshwar Nath And Ors. ( ALR. 1995 Allahabad 594) it was stated that the rules of law of torts of England should be made applicable as per the Indian atmosphere, that is, corresponding to traditions and Customs of it. ‘What are the reasons for the slow development of law of torts in India? In view of the above, the stability of the law of torts in India is due to English law, Since 1726, this law is made applicable in Indian courts, but the process of development of it is very slow. The reasons for it are as follows: — 1. ‘The Law is Not Codified: - The main reason for the slow development of the law of torts in India is that is not codified. Due to this, there is always a problem of uncertainty in front of the court. It is very difficult to decide which action comes under tort and which are not torts. The decisions of courts are generally based on precedents. 2. Ignorance of Law: ~ The second cause is ignorance of the law. People are not aware of their legal rights. Most people are illiterate and are unaware of their rights. This is the reason that they do not move to courts for justice even on violation of their rights. 3. Poverty: — Poverty has also distant the development of the law of torts. A number of people do not approach the Court due to poverty. They keep silence tolerating humiliating experience of extradition and tannery. But now the efforts are made so that a person may be deprived of justice due to the reasons of poverty. Arrangements for free legal assistance have been made in paragraph 39(A) of the constitution. Now the conception of public interest litigation is also contributed in forwarding the applicability of the law of torts 4. Lack of Political Will Power: —The formation of adequate law and their implementation are not willfully desired by the political representatives, which is also restaurant the development of the law of torts. The government is not effective as it ought to be in reference to reference to law and Justice. 5. Expensive and Delaying Judicial System: — The process of Judiciary system is very expensive and takes a long time in panting decision, therefore victims day to go to quotes and is the cause of non-development of the law of torts, Page. 702In M.C. Mehta vs. Union of India, Justice Bhagwati said: — We have to develop new theories and create new norms that will adequately deal with the new problems arising in a highly industrialized economy. We cannot allow our judicial thinking to be constructed in terms of, Jaw as it is prevalent in England or in any other country for that matter. We are of course ready to receive light from any source, but we have to create our own jurisprudence. Its pertinent to mention here that Section 9 of the Code of Civil Procedure 1908, as amended, which empowers the civil courts of the country to try all kinds of suits, which are civil in nature, under the Law of Torts Holds the jurisdiction responsible for trying cases. On the fundamentals of justice, equality and good conscience. In Jai Lakshmi Salt Works (P) Ltd vs. State of Gujarat, Justice Sahai, R.M. held in: — The entire Law of Tots is morally based and structured. Therefore, it would be primitive to strictly shut down or eventually to the ever-expanding and expanding horizon of tortious liability. Even for social development, orderly development of society and cultural sophistication, the liberal approach to fraudulent liability by the court would be favorable. In the light of the above 2 judgments, and with the aim of creating a distinctive Indian jurisprudence system, the following various branches of the Law of Torts in India have been codified: ~ + Judicial Officers Protection Act,1950 + Indian Carriers Act, 1865 + Cattle Trespass Act, 1871 + Easement Act, 1882 + Workmen Compensation Act,1923 + War Injury (Compensation Insurance) Act,1943 + Fatal Accidents Act,1955 + Trade and Merchandise Act, 1958 + Specific Relief Act, 1963 + Air (Carriage by Air) Act, 1972 + Bhopal Gas Leak Disaster (Processing of Claims) Act,1985 + The Consumer Protection Act,1986 + Motor Vehicles Act, 1988 Page. 703TORTS RELATING TO MARITAL RIGHTS Introduction Torts relating to marital rights is one of the aspects of the term loss of consortium. Loss of consortium means torts where a tortfeasor causes deprivation of the benefits of a family relationship. It is to provide compensation to the spouse or the members of the family by the defendant in a case where personal injuries have occurred to another spouse or family member. This right originated in the 18th century when a father was compensated by a man who courted his daughter, due to which instead of doing household services, she was spending time with that man Torts relating to marital rights was based on the principle of per quod servtium et consortium amisit which means “in consequence of which he lost her servitude and sex”. It protects the rights of the husband against personal injuries suffered by him, depriving him of company or association with the spouse. What are the Torts relating to Marital Rights? Torts relating to marital rights are rights which provide immunity to spouses against the third party for a variety of actions which leads to interference with the marital relationship. Torts relating to marital rights protect the deprivation of sexual relationship and also includes loss that a husband or wife suffers due to deprivation from care, affection, and companionship of the other spouse. These are categorized under the two main categories, which are explained below: 1. The first category involves torts for alienation of affection, Here, the plaintiff spouse seeks loss from the third party who has injured the other spouse. Though these rights are mainly given to spouses due to sexual conflict, there is no law which specifically states that alienation of affection only includes sexual deprivation. 2. The second category inchides criminal conversation, A criminal conversation happens when one spouse is cheating on the other by engaging in an extramarital affair. These rights are given, as it is considered that in a marital relationship, spouses have ownership rights over the affection and sexual services of the other spouse. ‘What are the kinds of Torts relating to Marital Rights? There are three kinds of torts covered under torts relating to marital rights which can be committed by a third party. They are as follows: 1. Abduction or taking away a man’s wife 2. Adultery 3. Causing physical injuries to a man’s wife Page. 718Abduction Under the common law system, a husband has been provided with the right to act against any person who either forcefully or by fraud takes away his wife. A husband has also been given the right to sue if a person entices or persuades his wife to live away from the husband in absence of a sufficient cause. The real point of an action lies in loss of consortium of the wife, giving the husband an exclusive right against the tortfeasor who has invaded to the wife’s aid, affection, and companionship. In all suits, the principle of per quod amisit serves as a basic ground which compensates the husband for losing the benefit of wife’s society i.e. her companionship and all the relations husband has got after marrying her. The right of the consortium is a mutual right which is equally available to both husband and wife. Either a wife or husband can invoke this right, if one of them is deprived of the benefit of another spouse’s society where society means companionship and all the relations related to a spouse through another spouse. For example, the wife under her right of loss of consortium can sue the defendant for deprivation of the benefit of the husband's society i.e. his companionship and all the relations related to wife after marrying him. Adultery During the medieval period, under the writ of trespass, adultery was maintainable. The action of adultery during the medieval period was known as the action for criminal conversation. After the enactment of Divorce and Matrimonial Causes Act, 1957, the action under the writ of trespass was abolished, Now, a husband has to claim damages for the adultery under the Divorce and Matrimonial Causes Act, 1957. A husband can either make a claim for damages either in a petition for judicial separation or in a petition demanding only claim for damages for adultery. A wife does not enjoy the same right and has not been given the right to bring a suit against the wrongdoer for claiming damages with regard to adultery committed by her husband. Under the principles of common law, damages inccured criminal conversation were awarded without requiring any proof of alienation of affection in the marital relationship. Causing Physical injuries to the Wife Under the common law system, a husband can bring an action against the tortfeasor for any physical injury caused to his wife by the actions of the tortfeasor. If due to maltreatment of the tortfeasor, the husband is deprived of companionship and assistance of his wife for any time period, the husband has the right to get a separate remedy. A wife can also sue a tortfeasor if an injury is caused to her and due to that injury her husband loses the benefit of her society and service which is also known as consortium et servitium. She can either claim damages under a single suit or she can file two different suits for claiming damages. In case, the wife dies due to the wrongs by the tortfeasor, the husband can claim damages for ial Accidents Act, The husband is awarded compensation as 's and society of his wife. The only condition that needs to be fulfilled is that Page. 719the husband and wife should not be living separately from each other while the action of tortfeasor occurred, otherwise no compensation will be awarded. This right was earlier limited to the husband only but with the passage of time, the Court has recognized similar rights available to the wife under the loss of consortium, Examples of torts relating to marital rights- If there is a car accident of a married victim causing injuries or disabilities, his or her spouse can claim damages from the tortfeasor. The other spouse will not only get damages for paying bills of the hospitals but also compensation for the absence of the victim spouse, which has deprived him or her from enjoying the companionship of the victim spouse. If the vietim spouse suffers some mental injuries, then his spouse will get compensation for mental injuries too, Pre-requisites of Torts relating to Marital The one who suffers an injury is known as the victim spouse and the other claiming damages is the claimant spouse. There are three basic ingredients to be fulfilled by the claimant spouse for getting compensation under the torts relating to marital rights: I. There should be liability of the tortfeasor to the victim spouse. 2. Marriage of husband and wife should not be severed. 3. There should be proof of damages by the action of the tortfeasor. Are these rights available to the cohabitants who reside together without having a valid marriage? Earlier law was very strict and it provided immunity only to legally wedded spouses. In 1977, in the case of Tong v. Joseon, the California Court continued the practice of recognizing the rights of married spouses only and rejected a claim made by the impaired partner who was not married to the vietim girl at the date of the injury. But with change of time, there have been several claims from the cohabitants who though are not legally wedded but are residing together. In 1980, in the case of Bullock v. United States, the Court of New Jersey overruled the old holding and held that a deprived cohabitant should not be restricted from getting damages for a tortious act which cause interference in the ongoing cohabitant relationship. Liability of Tortfeasor in transfer of Venereal Disease In cases, where a claimant spouse acquires any venereal disease from the other spouse who has acquired it from the third party, the third party is liable to the claimant spouse. In Mussivand Page. 720v. David, a wife transferred a venereal disease to her husband which she had acquired from her lover. The Court held that the lover of the wife will be liable to the husband for transmitting the disease to him. The Court specifically stated that the lover would not be held liable if the wife in advance was aware of the disease of the lover. English Legal System on Torts relating to Marital Rights Under the English common law, torts relating to marital rights were recognized. In Baker v. Botton, a husband was awarded damages for his wife’s injuries due to a carriage accident until she did not die. Even after the enactment of Lord Campbell's Act, the English legal system continued not to recognize the injuries caused by death. In the middle of the 19th Century, Illinois enacted a new act for wrongful death which allowed the next of kin to sue a person for causing the death, In Parker v. Dzundza, the Court held that there will be no compensation awarded to the spouse if the relationship between husband and wife was already severed by divorce. Torts relating to Marital Rights in India In India torts relating to marital rights are covered under the spousal consortium and is majorly invoked in the compensation under the Motor Vehicles Act or in divorce proceedings with respect to adultery. + In Abdul Kadar Ebrahim Sura v. Kashinath Moreshwar Chandani, for the first time, the Supreme Court applied the principle of loss of consortium. It held that a spouse has the right to claim compensation for the death of another spouse which resulted in the loss of companionship and services. + In Abacus Case, the Supreme Court defined the spousal consortium. The court held that the spousal consortium means the rights which are provided in a marital relationship for awarding compensation to the surviving spouse for the loss of affection, aid, company, society, and cooperation of the other spouse. + In Rajesh and Others v. Rajbir Singh and others, the court held that spousal consortium includes the right of the spouse to company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The spouse needs to be compensated appropriately for such loss. And, the court awarded 1 lakh rupees to the widow for the death of the husband. + In Ramkrishna Pillai v, Vijaykumari Amma, the Kerala High Court held that a wife cannot invoke spousal consortium and pressurize her husband to live separately from his parents unless there are grave circumstances, Why Torts relating to Marital Rights are important? Torts relating to marital rights are important due to the aura given to the relationship between a husband and wife. Marital relation has always been held worthy of getting legal protection, Page. 721It protects the interest ofa husband and wife against any injury caused to the physical integrity of his or her spouse. It compensates for the deprivation of financial contributions by the injured spouse in the household, affection, and sex caused by the injuries of the tortfeasor. For example, X injures W’s husband H in an accident, W can get compensation to recover the damages X has caused by injuring H; damages may include: H’s monthly pay which is being cut off because he is not going to work due to injuries caused, deprivation of affection and sexual relationship which W would have got if H was not injured ete. Are there any Marital Rights which are covered both under Civil and Criminal law? Yes. In India, for all the above-mentioned torts relating to marital rights, a person can institute suit in the criminal court of law except for adultery. Adultery has been abolished as a criminal offense by the Supreme Court in September 2018 in the case of Joseph Shine v. Union of India, Difference between rights given under Civil law and Criminal law 1. Under the torts relating to marital rights, only spouses are given the right to sue the third party whereas there is no such limitation imposed in the case of criminal law. 2. Mere abduction is not made punishable under the Indian Penal Code. It is only an offense when it is coupled with actual force. Whereas under torts relating to marital rights, even if a person entices the other spouse without using actual force, an action for the damages can be brought against the person, Preference to civil or criminal right? Under the criminal law, punishment for the offense is given in the form of fines, imprisonment and the other form of penalties which would not benefit the claimant spouse. Whereas when a spouse brings an action in the civil court of law, the claimant spouse will be awarded for damages in the form of compensation, Therefore, a spouse should always bring an action against the third party for the interference in the civil court of law if compensation is the priority. Husband and Wife In the case of husband and wife, the issue of personal liability can be dealt with two scenarios. First, the husbands liability for wife's torts and Second, the action between the husband and wife. i) Husbands Liabi ty for Wife’s Torts Under common law, a married woman could not sue any person for any tort in the earlier phase of development of tort, unless and until her husband joined her as a party to the plaintiff. In addition, a wife could not be sued without making her husband a defendant's party. Page. 722These anomalies were removed by the legislative acts, i.e., The Married Women’s Property Act, 1882, and the Law Reform (Married Women and Tortfeasors) Act, 1935. After these acts, a wife may sue or be charged without making her husband a joint party to the suit. However, if the husband and wife are joint tortfeasors, then they can be made jointly liable. Drinkwater v. Kimber, (1952) 2.8. 281 This case, explains the point. There a lady was injured because of the combined negligence from her husband and a third party. She recovered the full amount of compensation from the third party. The third-party could not recover any contribution from the husband as the husband could not be made liable towards his wife for personal injuries Regarding the contribution between the wrongdoers, the original rule in England was known as the rule in Merryweather v. Nixon, It stated that in the case of joint tortfeasors, the one tort-feasor who paid the full amount of damages for the wrongdoing could not claim contribution from the others. The Law Reform (Married Women and Tortfeasors) Act, 1953 abolished this disability and enabled the joint tortfeasors to recover their contribution. The Law Reform (Husband and Wile) Act, 1962 has changed further and in this regard, the law has changed to the effect that when a spouse sues a third person, the latter can claim contribution from the other spouse who ‘was a joint tort-feasor. ii) Action between Spouses At common law, there could be no action between husband and wife for tort. Ifthe other spouse committed a tort, neither the wife could sue her husband nor the husband could sue his wife. The change has been brought up by the Married Women’s Property Act,1882 and permitted the married woman to sue her husband in tort for protection and security of her property. The property includes chose in action which is given in Section 24 of Married Women’s Property Act, 1882 ‘As a wife could sue her husband only for the protection and security of her property, she could not sue her husband if he caused her personal injuries. Thus, ifthe husband damages her watch, she could sue for the same but if negligently fractured her legs, she could not bring any action for the same, The husband has no right for an action for any kind of harm caused by his wife to him. Curtis v, Wileox [1948] 2 K.B. 474 (C, The defendant by his negligent driving injured the plaintiff, a passenger in his car. After the issue of her writ, claiming, inter alia, damages for pain and suffering, but before the hearing of the action, the plaintiff married the defendant. The defendant, in substance the husband’s insurance company, pleaded that the claim for general damages was barred by the marriage. Oliver J. held that he was bound by the judgment of MeCardie J. in Gottliffe v. Edelston 1930] 2 K.B. 378, and disallowed the claim for general damages. The Courts of Appeal (Scott, Wrottesely L.JJ., Wynn-Parry J.) in a considered judgment per Wynn-Parry J., allowed the appeal and overruled Gottliffe v. Edelston. They agreed with Meeardie J.’s view that a thing Page. 723in action includes a right of action in tort, but they dissented from his decision that “thing in action’ as used to define separate property in the Married Women’s Property Act, 1882, Section 24, was used in a limited sense. Accordingly, a wife is now entitled to sue her husband for a purely personal antenuptial tort. Broom v. Morgan (1953) 1.8. 597 In this case, it was held that if a husband committed a tort against his wife in the course of his ‘employment of his master, the master was liable for the same. DENNING L.J. observed: “If the servant is immune from an action at the suit of the injured party owing to some positive rule of law, nevertheless the master is not thereby absolved. The master’s liability is his own liability and remains on him, notwithstanding the immunity of the servant. The rule prohibiting action between spouses has been abolished by the Law Reform (Husband and Wife) Act, 1962. Now, the husband and wife can sue each other as if they are unmarried. The Act, however, places a restriction on the action during the marriage by one spouse against another and the court has been given a power to stay the action if it appears that no substantial benefit will acetue to either party from the proceedings, or the case can be more conveniently disposed of under Section 17 of the Married Women’s Property Act, 1882. Under Indian law, personal capacity to sue and be sued in tort between husband and wife is governed by their personal laws, be they Hindus, Sikhs, Jains or Muslims. For Christians, the Married Women’s Property Act, 1874, removed various anomalies. Furthermore, the Indian Constitution removes all anomalies of marital status and personal capacity present in common law. Article 14 embodies a guarantee against arbitrariness and ‘unreasonableness, taking into account the case of Ajay Hasia v. Khalid Mujib (1983). Page. 724PARENTAL RIGHTS Parental and Quasi-parental Authority Parents and persons in loco parentis have a right to administer punishment on a child to prevent him from doing mischief to himself and others. The law is that a parent, teacher, or other person. having lawful control or charge of a child or young person is allowed to administer the punishment on him, Parents are presumed to delegate their authority to the teacher when a child is sent to the school. Such an authority warrants the use of reasonable and moderate punishment only and, therefore, if there is excessive use of force, the defendant may be liable for assault, battery or false imprisonment, as the case may be. In England, as per Section 1 (7), Child and Young Person’s Act, 1933 a parent, a teacher, or other person having lawful control or charge of a child or young person is allowed to administer ‘the punishment on him, Cleary v. Booth, (1893) 1.8. 465 Facts: Booth (Defendant), a school headmaster, administered corporal punishment on two boys after Jeaming that they had fought on the way to school. The defendant was charged with assault and battery and convicted for it. He appealed. Held: The authority of a teacher to correct his students is not limited only to the wrongs which the student may commit upon the school premises but may also extend to the wrongs done by him ‘outside the school, for “there is not much opportunity for a boy to exhibit his moral conduct while in school under the eye of the master, the opportunity is while he is at play or outside the school”. ‘There is no question that, while at home, a child is under a parent’s authority. It is also clear that while at school, a child is under the head master’s authority. The question is under what authority the child is when he was on his way from home to school. Likely, the child may be said to be under the headmaster’s authority through the parent's delegated duty. In that case, if necessary, the headmaster has the right to inflict punishment on the child in order to correctly raise the child, The authority of the headmaster extends not only to acts performed by children while they are at school but also on the way going to and fro from school to home. Here, the ‘two boys were on their way to school when they are engaged in fighting. The defendant was ‘well within his right to punish the boys. Page. 725Elsel v, Board of Education (19: The Maryland High Court ruled that school counselors were negligent in not revealing their knowledge of a student’s threatened suicide to the child’s parents. The counselor's negligence ‘was not for failure to physically prevent the student's suicide, but rather for not communicating, information regarding the child’s intent Torts in the Family In early family law, tort law acknowledged a comparable right to sue, comparable to secondary liability, where a superior can act on behalf of his/her inferior/subordinate. This application of property rights to family law cases enabled husbands and fathers to recover damages from tortfeasors for injury to family members. A loss of “services” from his wife or child included the grounds on which a husband or father could recover for his family. Usually, the “services” included household duties such as cleaning, childcare, companionship, and other “marital responsibilities” that the wife or child no longer had, Vicarious Liability Despite the parties * distinct legal identities, the court system retained the family unit as a collective identity. The family unit's interests and relations are deemed to be proprietary to a certain extent and “by right.” Any interference or action that alters, changes, infringes or threatens the family unit is therefore possibly a tortious interference in family law. Importantly, interference with family relationships between members of the respective family unit may occur. For example, a husband may be liable for family-related interference with his wife and child’s relationships. Interference with Family Relations A particularly challenging subject of tort law is family torts in domestic relations. The reason for this is that the family structure itself and its functionalities are often at the core of the complainant's and the defendant’s arguments. Family torts may be associated with tortious action between husband and wife, or between parent and child. Tort in the family may also include vicarious liability and negligence on behalf of the parent or legal guardian for tortious actions committed by a minor under an adult’s legal guardianship, Injuries to Family Members Vicarious Liability is a secondary liability that accounts for the actions of its subordinate parties. Thus, torts raised against legal subordinates are vicariously transferred for litigation purposes to the superior party. This usually means that in Domestic Relations tort, parents are responsible for tortious offenses committed by their kids. This Vicarious Liability also extends to legal guardians, who are vicariously liable for their juvenile wards * tortious actions. Page. 726Immunity Torts between parent and child now tend to revolve around the “parental discretion” concept that is left to review by the court. Usually, a jury is not justified to second guess the right of a parent (0 act for their own child in their judgment. ‘The idea of “parental discretion” is not absolute, however, a court may find a parent guilty of tortious behavior towards his or her child as a separate legal entity and may, therefore, find the parent liable. The same principle works for family torts for husband/wife, which warrants a certain amount of cause to infringe marriage confidentiality and pass judgment. Page. 727FILAC METHOD TO WRITE CASE ANALYSIS What is the FILAC Method? F-FACTS I - ISSUES L-LAW A- ANALYSIS C- CONCLUSION Facts The first step or heading in the FILAC method is “facts”. In this section, you will want to identify the relevant facts within the case, Try not to summarize the case verbatim otherwise you haven't really saved yourself any time - which is a key advantage of using this method! ‘Outline only the facts that influence the case and play a critical role in understanding the spirit, of the case and the law. Depending on the case you're analyzing, the length of your facts may vary. Don’t be too concerned with how long or how short this section is, simply try to pick out the relevant facts and make sure they can be clearly interpreted. Identifying the relevant facts also helps to expose the legal questions and/or issues that are present. Be sure to focus on what events gave rise to the dispute in question. Try to answer questions like, “what happened”, “where and when did the event occur”?, and “who was present at the event”? Also be sure to note what claims the parties are making so that you can pinpoint the facts that ‘would agree with or dispute the alleged claims. All of these fact-collecting techniques will also help you read the case with purpose to pick out the important facts, making it easier to continue developing the analysis, Issues This is where you identify the legal issues that need to be reviewed and researched. The issues ‘you outline depend on the facts of the case, which is why outlining the facts is an important preliminary step. Reviewing a case or situation for legal issues will also assist in determining how weak or strong a case is. Although you cannot change the facts of a case, you can certainly choose which legal issues to pursue and build upon. When you are looking for the legal issue(s), tty to keep it brief, Issues are typically outlined in bullet points, short sentences or poised as ‘questions. The issues are what the court will consider when deciding whether to grant or deny a form of relief, Page. 728Some cases may yield multiple issues, and some may just have one. Do not get caught up on the number of issues listed. If you have one strong legal issue, that is all you will need, and focus your attention there, On the contrary, if you have multiple issues, you may end up narrowing them down and removing some once you delve further into your research and realize some of them may be weak Try and make sure your issues are also clearly outlined because you will regularly be referring back to them when doing your research. Having the issues clearly outlined will help you confirm whether you have addressed and answered each issue at the end of your research, Law Once you’ ve outlined the legal issues, you can begin to research the laws that govern the issues, The court will end up applying the legislation to the issues so it is best to keep that in mind when you are doing your research. Ensure that the laws you find are applicable to the legal issues so that you can properly assess the legal merit of your case. When deciding where to look to conduct research into the applicable laws, aim to use both primary and secondary sources. Primary sources are considered actual legislation and case law precedents. Primary sources are helpful because they produce exact legislation that may apply to the case and the legal issues. Case law precedents are also impactful because it can give you an idea of how the legal issues will be assessed by the court Ifa certain case does hold precedence, it will also show how your researched case or actual matter may be decided by the courts. Secondary sources are sources that aim to explain and critique the law. These sources can be found in textbooks, articles and videos. The purpose of reviewing secondary sources is to clarify and gain insight into the legislation and precedents you have discovered. When you are researching case law in particular, be sure to identify any recent updates or overturned decisions. The law changes daily and you want to make sure you are referencing up to date legislation and precedents so that your application is accurate, Collecting research on applicable laws is a helpful step because this will also aid in your ability to discern how strong or weak a case is, and also understand how previous courts may have reached a certain decision Analysis In this section, you are tasked with applying the relevant law to the facts of your case and analyzing the issues from various viewpoints. Analyzing the law in this way allows you to reach an expected outcome in your case. The legal analysis is a critical part of legal research because you are outlining the relevance of certain cases, statues, and legislation while looking at the context of your case. Here, you will begin to compare and contrast relevant cases, interpret the statues you have identified, and directly apply the law to the facts of the case. Ifyou are doing a case brief on an already decided case, the analysis section is also where you include the court’s rationale for their decision. You can also distinguish past cases from the current case to better determine what law and rationale is applicable versus what is not. Your analysis should essentially dictate how the court has combined the facts of the case to the law in order to reach a certain conclusion. Page. 729The analysis should not be too involved or convoluted, You want to be able to quickly identify the laws applicable to your case and how it may or may not have swayed the decision of the ‘case, Many recommend to keep this section relatively short but length will vary based on the type of case, the facts, and how those facts are analyzed. Conclusion Finally, you have reached the conclusion, The conclusion first outlines the decision of the case, It can be as brief as “the case was dismissed” or “the appeal was granted”. Be sure to also include what level of court the case was heard at (i.e Ontario Court of Justice, Superior Court, Appellate Court, Supreme Court, etc). The conclusion is simply meant to wrap up the research, you have done and phrase the decision in a succinct manner. The findings should be clear and provide a logical roadmap to how they were arrived at. ‘New issues should not be raised here as they should have been discussed in the analysis However, the conclusion of the case may lead you to ask a final evaluative question. The conclusion section is typically short because you are simply summarizing the decision and what the next steps are, if any. Once you have populated each heading, you'll have a quick and easy case brief to reference fora case or scenario you have analyzed, Case briefs are also extremely helpful during studying sessions because they save you time from reading an entire case over again Instead, you can easily pull up a case brief and review the main facts, legal issues, applicable laws and decisions. Although the FILAC method is quite popular, the headings can always be altered to better suit your needs and interpretation preferences. The headings are simply meant to give you direction and a guide on how to outline your research and review the material. ‘There’s not one particular way that is correct so simply do what works best for you! Page. 730