Tort Legal Services

Tort Law is probably the most famous Legal recourse on the island as by definition “tort” means the breach of a duty imposed by law, whereby some person acquires the right of action for damages. In very general terms, a tort is a civil wrong, other than a breach of contract, which the law will redress by an award of damages. Some examples of tort actions in the court are among other, the awarding of damages due to negligence (level of liability / contributory negligence), nuisance, defamation (libel / slander), duty of care, misrepresentation (fraudulent, negligent and/or innocent), assessment of damages (special, general, punitive, exemplary, loss of amenities etc.)

Duty of Care

The duty of care refers to the principle that any individual who offers a service has a duty and/or responsibility, to his/her client to provide and/or act in the same way as any reasonable person in their position would. For example, a lawyer has a duty to provide a service to a client in the same way as any other reasonable (average) lawyer would have if it was in their position.

The burden of proof to a breach of duty of care lies with the plaintiff to prove that the standard has not been met. In general, the courts in the Republic of Cyprus are satisfied that the duty of care has been met as long as the service completed was done after the client was reasonably informed, when the service was done in good faith, when the service was offered the result was a reasonable one and/or an expected one according to the reasonable man’s test without the presence of any conflict of interest. The Court’s will examine a case as being the third bystander who observes the facts of the case and assumes on the balance of probabilities whether the necessary duty of case has been met to decide a claim in tort.

Overall, an individual can meet the duty of care by showing fairness and being reasonable. This means that both a fair process was used to reach the decision (on how the service proceeded) and that the decision produced a substantively fair outcome for the client to the extent that it would be reasonably expected. The question that always needs to be answered in tort claims is whether a third party acting in his professional capacity or as a reasonable man would have exercised or provided the same duty of care as the service provider did to the client and to the necessary extent in order to avoid any negligent and/or fraudulent acts and omissions vis a vis the client. Therefore, by applying this test of reasonability the Courts attempt to resolve and decide whether the necessary duty of care was implemented and if not assess the level of liability incurred for the purpose of awarding damages to the innocent party.  This principle is the main source of the Law of Restitution.

Negligence (level of liability / contributory/ comparative negligence)

Legal actions based on negligence are the most common kind of civil action in the area of tort law. Negligence is defined as the failure to exercise a reasonable duty of care the average practical individual would have exercised under the circumstances. The reasonable duty of care refers to the average duty of care an average professional (lawyer, doctor, economist etc) would have had in the same scenario. This deficiency of “care” can cause physical, mental, or economic harm to an individual who can seek damages through the courts. However what happens if that individual has also been negligent. If such negligence can contribute to the harm, the recovery damages may be reduced or lost entirely. This is known as contributory negligence which appears as a defence in case law. A comparative negligence in the other hand is just partial legal defence. It may reduce the damages which can be recovered in a claim based upon the degree level to which the complainant’s own negligence contributed to that harm.

Defamation (Libel / Slander)

Defamation refers to any intentional false communication, either written or spoken, that harms and/or disseminates a person’s reputation, decreases the respect, regard, or confidence in which a person is held or induces disparaging, hostile, or disagreeable opinions or feelings against a person. The person’s close social and/or business circle and the amount of credibility/ reputation he enjoys from that circle will always be taken into consideration to the extent that it was affected, diminished and/or hindered.

Defamation can have both a criminal and a civil charge. There are two versions of defamation, libel and slander. Libel is when the defamation is written down (including email, websites and any other means of informative publications). Slander is when the incident relates to words spoken.  The burden of proof for Defamation claims falls on the claimant.

It is important to mention that the probability that a claimant can recover damages in a defamation claim depends largely (but not fully) on whether he is a public figure in the eyes of the law. For example if you say that Andreas Andreou, who is an average individual unknown to the general public, has not paid his taxes for 10 years, his reputation will not be damaged by this disclosure. On the other hand if, you say that Stathis Aloneftis, who is one of the most famous Cypriot footballers, has not paid his taxes for 10 years, it could have a serious consequence in his career. He can be suspended from playing as exemplary measure by the manager and damage overall his reputation. Effectively, if the defamed person is a public figure, the person who performs libel or slander can raise the defence of his comment was justified due to the public interest. On the other hand if the defamed person is a private individual (physical or legal person) the party which allegedly made the defamatory comment can raise the defences of “fair comment” and of “justification” and “statement of fact” which is governed by the fundamental principle of freedom of expression as long as he has sufficient evidence to prove that he did not intentionally attempted to defame the claimant and/or that he did not expressed a comment with the purpose of causing defamation, i.e he clearly stated that the said comment is the author’s sole and personal opinion. The test that applies in any case, is based on the proportionality dictum.

Both of the above scenarios can end up in court. However, it would be unlikely that the first situation would result to a successful claim.

Although defamation law will give rise to special / general damages, the innocent party can however chose to waive his legal interest in the case should the person acting upon the defamatory comment apologises in writing and/or makes a statement in public and/or within the innocent party’s business/ social circle that he withdraws fully those defamatory comments as being false, erroneous, misleading, disproportionate and unfair and provided of course that such an apology is fully accepted by the defamed person to the extent that he feels that no economic loss has been suffered and his credibility/ reputation have been completely restored.

Damages (special, general, punitive, exemplary, loss of amenities etc.)
What remedy does (and should) the legal system provide to tort victims? Although they may occasionally obtain injunctions intended to prevent ongoing harm, almost all successful tort claimants obtain money damages. A surprisingly large number of difficult and contested issues arise, however, in determining just how much money should be awarded. In a negligence for example can seek damages for personal injury. These damages can be distinguished into

·         SPECIAL DAMAGES which includes:

·         Out of pocket expenses such as

•         medical expenses

•         surgical fees

•         transportation

•         Special needs etc

·         Loss of income up to the date of judgment less any deductions

•         Loss of past & future retirement

•         Nett loss of pay plus overtime

•         minus any savings to be made as a result of the injury (ex: cost of transport to work)

•         minus any boarding and lodging savings ex for being in hospital

•         minus allowance for income tax deductions

·         Loss of earning capacity after the judgement (where applicable – see above)

·         GENERAL DAMAGES

·         Future medical and hospital expenses such as

•         Future cost of hospital, medical, nursing and home care even where the care (nursing/home care) is provided by a spouse or relative (the damages for such expenses are calculated by reference to the market cost of the services)

·         Future economic loss

•         Which refers to loss of earning capacity. The duty here is on the claimant to provide evidence of real possibility of the potential/capacity which has yet to be exploited that could have been exploited in the future but because of the injury suffered it

·         Non-economic loss

•         Loss of amenities and enjoyment of life

•         Pain and suffering

•         Loss of expectation of life

Misrepresentation (fraudulent, negligent and/or innocent) & Unjust Enrichment

A misrepresentation is a false statement which induces an individual to enter a contract. Where a statement made during the course of negotiations is classed as a representation rather than a term, an action for misrepresentation may be presented only where that statement turns out to not be true.  Generally, statements of opinion or intention are not statements of fact in the context of misrepresentation. If one party claims specialist knowledge on the topic discussed, then it is more likely for the courts to hold a statement of opinion by that party as a statement of fact.

There are three types of misrepresentation: innocent misrepresentation, negligent misrepresentation and fraudulent misrepresentation and all types can result to a contract to be voidable (not void). However, the right to rescind the contract may be lost in some circumstances. There are monetary damages available which are affected by the type of misrepresentation.

A common tortious offence which may stem out or result by misrepresentations and/or by way of contact is the tortious offence of unjust enrichment. A person who is unjustly enriched and/or receives goods or services disproportionately higher to his own consideration will be committing this offence. Same applies were money is received by the person committing the offence and which he previously did not have and which he received not gratuitously but more importantly the person giving the money did not intend for the recipient to be benefited without equal consideration. The offence of unjust enrichment is commonly present in cases of breach of contract and therefore also derives from Contract Law.

Nuisance
Nuisance refers to a legal action to restore a harm which had been risen from the usage of an individual’s property. There are two types of nuisance: the private nuisance and the public nuisance but only the private nuisance has a civil action claim.

Briefly, a private nuisance is a civil wrong. It refers to the unreasonable, unwarranted or unlawful use of an individual’s property in a way which it interferes with the enjoyment or use of another individual’s property. This nuisance occurs without actual trespass or any physical invasion to the land.

A public nuisance on the other hand is a criminal wrong. It refers to an action or an omission by a public servant which interferes or damages the rights of the general public.

Protection of a Business Name

The trade name of a business along with its good will is a valuable asset giving the person the right to seek legal protection should another person try to make unlawful use of it by committing the civil wrong known as “passing-off”.  Legal protection is constantly available provided there is use of the business name and is identified with the trade or the premises of operation of the business.

This cause of action is provided to any individual who has invested a lot of effort, time and money in order to advertise, promote, and make known his services or goods to the public in order to recognize and prefer them. In this way, the business name, good will, and fame is established, regardless of the place where the goods are produced, traded or where the services are available and obtainable.

The Civil Wrongs Law provides that any person who by using and/or imitating the name, description, sign, label or otherwise causes or attempts to cause any goods to be mistaken for the goods of another person, so as to be likely to lead an ordinary purchaser to believe that he is purchasing the goods of such other person, commits a civil wrong against such other person, provided that no person shall commit a civil wrong by reason only that he uses his own name in connection with the sale of any goods.

The aforementioned legal protection being a statutory one (statute bared) is given to the owner of any kind of business whether it be trade, services or goods, such as the name of a restaurant, establishments, club, shop, firm, food, drinks, etc. even if the name has not been registered through the Registrar of Companies as a business name or a trade mark. The protection of a business name does not allow a third person to use the same name for a similar business or goods. Therefore, if one tries to take advantage of the business’ name, goodwill or fame or the name of the goods of another, he is considered to be committing the civil wrong known as passing-off, which provides an actionable right to the affected person. In such a case, there is a breach of the aforesaid statutory provision, the remedy of which can be envisaged. For this purpose, it is necessary for the person aggrieved to react immediately so that to protect and safeguard his rights by instituting a legal action and file an application before the Court to issue an interim order, restraining and prohibiting the third person of using the name in question, until the action is adjudicated by the Court in order to avoid future and further infringement and economic loss which in some cases it may be hard to assess due to the lapse of time and/or due to remoteness from the material time of the offence.  With such a temporary remedy the aggrieved person is protected by maintaining the status quo, until the issue is determined. In a proper case, the Court will issue a permanent order restricting and prohibiting the use, copying or the passing off of the infringed name and adjudicate damages as compensation for the infringement.

The law embodies the actionable right of passing-off as identified and developed by the common law. It does not only cover the passing off of goods, merchandises, products or services, but also includes any other case when a person unlawfully takes advantage or uses the good-will and the business name of another person by falsely presenting them to be his own. In order for a claim to be validated on the basis of the civil wrong of passing-off there must be use of the trade name of another in a manner that causes confusion to the public about its origins.

Notably the addition of the geographical name of a place in the name of a business indicating that a particular firm operates there, does not cause confusion or misleading. Moreover, the name of an area can be registered as an official name in the Dictionary of Standardisation of Geographic Names, as long as the local self-government or other authorities proceed with its registration. Therefore, the civil wrong of passing-off is not committed, because the name of an area does not belong to anyone.

Cases of accidents, personal injury, and medical negligence also fall under Tort Law. Please contact our Legal department for more information