2 History Of Tort Flashcards
Describe how history sections in tort textbooks are misleading
- they ignore important causal connections between law and society, resorting to ‘broad generalisations to avoid concrete study of the uses of power’
- there is no discussion of ‘questions of antagonistic interests, social conflicts, or group struggles’
- they support other casual connections where none exist
Describe the sources of support accident victims had prior to the Industrial Revolution
- family
- employer
- friendly society
- charity
- poor law
Why did people not sue in tort before the industrial revolution
- low expectation of length and enjoyment of life
- no using those close to you
- no access to law for most people
What changes did the industrial revolution bring about in tort
- increased no of accidents (due to industrial machinery, buildings and public works, transport etc)
- decreased traditional sources of support for victims (extended family unit was broken up, more rigorous rules applied for poor relief etc)
How was tort liability changed by the industrial revolution, and why
Liability changed from strict liability to fault
Supposedly to protect emerging industry & Victorian entrepreneur from greater likelihood of tort claims
Why are textbook views on the causes of tort changes during the IR wrong
- Bad sociology - would courts have been flooded w litigants?
- consider pre industrial reasons for not suing in tort (poverty & illiteracy, access to law & lawyers was hard, attitudes towards accidents was grin and bear it its expected, power of employers etc)
- bad economics - would burden of compensation have been so devastating?
- low awards of damages
- D’s = increasingly more corporate bodies not individuals
- D’s increasingly able to protect themselves by taking out liability insurance
Give some v important influences on 19th cent developments of fault in tort law, and what these meant
- intellectual / moral / religious attitudes towards responsibility for ones acts
THUS, tort was not affected by increasing injuries to working people
Describe the views supported by USA empirical study of tort 1880-90
- traditional picture = fault principle resulted from economic forces
- but we are ignorant of the actual litigation process
- Lawrence Friedman’s empirical study 1987 showed:
- tort operated as a system of non-compensation in these times
- thus traditional explanations for the establishment of the fault principle must be challenged
Why could tort be described as a ‘non-compensation’ system in late 19th cent
- formal legal rules obstructed compensation
- the system in practice, the ‘living law’, was more important, which obstructed compensation
How did formal legal rules obstruct compensation in tort in the late 19th cent
- any degree of fault found in defence of con neg defeated claim entirely
- defence of consent / assumption of risk was found unfairly when worker agreed to accept job
- defence of ‘common employment’ meant no damages if injured by an employee having same employer as claimant
- denial of claims for people injured when in fact they were found to be trespassers - eg people killed on a railway
How did the fact that, the ‘living law’, law in practice, was most important in tort in late 19th cent, obstruct compensation
Employers had power of people’s:
- jobs (keeping work more important than slim chance of winning a lawsuit)
- welfare benefits & medical treatment (work payments & healthcare only offered if in ‘agreement’ not to sue)
- negotiations w the injured (paying any sum gave company immunity from lawsuit)
- the legal process (best lawyers acted for employers?)
Peoples expectations of legal system low
- was a culture of ‘low expectations’ (accidents believed to be result of fate / chance / divine intervention)
- attribution of blame for accidents more likely to be on themself or another, rather than employer / system
Describe the alternatives to tort that emerged in the late 19th cent
- no fault compensation outside of tort system via Workmen’s Compensation Act 1897 - basic weekly payments quickly delivered
- why study tort instead of social security & industrial injuries scheme? (ss has more claimants and compensation but much less lawyers) (law school focuses on law used by private lawyers, not that affecting general pop)
What can we conclude about 19th cent tort changes?
19th cent changes to liability in tort were NOT the result of injuries suffered by working people
