3.2 Theory of Tort Law Flashcards
what do judges do when dealing with an area of law not previously dealt with
exercise with causion so avalanche of new claims isnt created
these decisions are known as policy decisions, what are policy desicions
not to achieve individual justice, but to create a precedent fair just and reasonable
what are the factors that judges take into consideration when considering this
Loss allocation, floodgates, practical impact on imposing liability
why are there limitations for the claim of pure economic loss
-If actionable, there would be no reasonable limit to a D liability
-Courts would be overwhelmed with claims
what does pure economic loss mean
finatial loss suffered by C
why are their policy decisions limiting the claims for psychiatric injury
- fear of opening the floodgates
- potential of fraud claims of people exaggerating
- problems with proving and diagnosing psychiatric injury
how was the test for comparing the D to the standard of the reasonable person created
due to the outcome of the case of Vaughan v Menlove (1837)
facts of this case
D built a haystach on his property line near the C property. One day the haystack caught fire and it spread to the C’s barn.
what did the court say in relation to the standard of care for negligence.
If the stardard was just that the D needed to act, that would leave such vague a line as to afford no rule at all.
what is an injuction
a court order to stop doing something or start doing something
What did the supreme court of judicature act 1925 say when an injunction should be used
‘in all cases which it shall appear to the Court to be just and reasonable’
how will the court weigh up factors on before granting an injunction
weight up social usefullness of the activity against the harm its causing the C
whats the most common form of vicarious liability
liability on employers for the torts committed by their employees.
hows vicarious liability established
it’s necessary to show that an employee was employed at the time of the tort
why does vicarious liability exist
employers have deeper pockets to pay C
- most employers will be insured against claims
