4- The Rules of Tort Law

Question 1

What are the main areas of civil law?

Answer 1

1. Tort law- allows people to claim compensation when they have been injured or their property has been damaged.
2. Contract law- operates when goods and services are bought and sold
3. Family law- sets out rules governing family relationships
4. Employment law- sets out rules operating between an employer and an employee

Question 2

What is tort?

Answer 2

A civil wrong, and tort law compensates a person who has been injured or whose property has been damaged.

Question 3

Who starts the case in tort law and what might be claimed?

Answer 3

Case started by the person who has suffered the loss or injury.

Loss may be damage to property or loss for money.
The injury may be physical or psychiatric, and can be minor or severe, involving lifelong care.

Question 4

What is the person starting the case called? And the person defending?

Answer 4

Claimant and defendant

Question 5

Does the gov get involved in tort?

Answer 5

No. They won’t usually be concerned with tort law as the action is between the persons involved in the accident.

Question 6

What will be the award or remedy if the case is successful?

Answer 6

Remedies in tort law are usually in damages.

In some torts, such as nuisance, the court may award an injunction to stop the action from being complained of.

Question 7

What is damages? And injunction?

Answer 7

DAMAGES: Payment of $ as compensation.

INJUNCTION: Order of court to stop doing something.

Question 8

How are tort cases dealt in the courts?

Answer 8

1. Claimant (C) will prepare their claim with initial evidence to show that they have a case
2. They will also have to suggest the amount of damages they are intending to claim, in order to issue the claim to the right court and follow the right tracking procedure.
3. In civil trial courts- Judge will sit alone to decide:
   
   • liability- whether C or D has proved the case
   • how damages should be paid
   • if winning party is entitled to the payment of their legal costs by the losing party (general rule is that the loser pays the winner’s legal costs in addition to their own.)
4. One of the parties can appeal against the decision of the judge, either:
   a) against liability- on the grounds that the judge misdirected themselves on the relevant law or
   b) against the amount of damages awarded- too excessive or insufficient

Question 9

What are the civil court system and appeal routes for dealing with tort claims?

Answer 9

1) Small claims track
- 1 District judge
- up to 1,000 in personal injury claims
- 10,000 in other claims

2) County Court
- 1 Circuit judge
- up to 100,000
- appeals from small claims
or

 High Court

 - QBD
 - 1 High Court judge
 - 100,000+ or where complicated issues of law involved
 - no appeals from small claims

3) CofAppeal (Civil Div)
- appeals from lower courts
- can be based on liability and/or amount of damages
- 3 Lord Justices

4) Supreme Court (or Leapfrog appeal from High Court)
- appeals from lower courts
- appeal based on point of law of public importance
- at least 5 Justices

Question 10

What is the burden of proof? What is it in civil cases?

Answer 10

Obligation on a party in a court case to establish the evidence to a required degree.

In civil cases, the burden of proving that D is liable is on the claimant.

Question 11

What is the standard of proof in civil cases?

Answer 11

‘the balance of probabilities’

This means that the court must be satisfied that on the evidence, the occurrence of an event was more likely than not.

It is a lower standard than the one used in crim cases.

The reason is that D is not being punished and is not at risk of losing their liberty if the case is proved.
- claimant only proving that D was at fault for the accident and is responsible for the damages/injuries

Question 12

What is meant by fault in civil torts?

Answer 12

Many civil torts, particularly those based on negligence, require claimant to prove that D was at fault.

Fault in this sense means that there is some wrongdoing by D

Claimant will have to prove D’s fault with evidence

- In accident claim based on negligence, evidence will have to show how and why the accident happened and that it was due to the wrongdoing of D
      - This is known as a 'BREACH OF DUTY' by D

If claimant cannot present sufficient evidence to prove the fault they will be left without compensation even if they are suffering physical injury or damage to their property

Question 13

Why is fault often difficult to prove for the claimant?

Answer 13

Bc expert evidence may have to be paid for

Question 14

What is the definition of fault in relation to tort law?

Answer 14

A breach of duty or negligence and, in some circumstances, the errors or omissions of others.

Question 15

What torts require fault to be proved?

Answer 15

• Negligence
• Occupier’s liability
• Psychiatric injury and
• Economic loss

Question 16

Which torts don’t require fault to be proved? What is their definition

Answer 16

Strict liability actions
- civil actions where fault of D does not need to be proved

• They will usually be cheaper and simpler for C to prove as they don’t require evidence to show how and why the accident happened.

Question 17

What are the 3 different strict liability torts?

Answer 17

1. Nuisance- action to stop unreasonable use of neighbouring land & which causes loss of enjoyment of C’s property.
2. Rylands v Fletcher- action for damage to land caused by material escaping from neighbouring land
3. Vicarious liability- where employee commits a tort in the course of their employment causing loss/injury to C.
   
   • C can take action both against the employee & the employer, but usually + beneficial to take action against latter as they will have + $ to pay in compensation & employer should be insured against liability to 3rd parties

Question 18

Which torts are fault-based & which strict liability?

Answer 18

FAULT-BASED:

• Negligence
• Occupiers’ liability
• Economic loss & negligent misstatement
• Psychiatric injury/nervous shock

STRICT LIABILITY:

• Private nuisance
• Rylands v Fletcher
• Vicarious liability

Question 19

What are the defences available to D in civil law?

Answer 19

Fewer than in criminal cases.

D can suggest that C partly or wholly caused their own injury
- defences called CONSENT and CONTRIBUTORY NEGLIGENCE

Question 20

What is negligence in tort law?

Answer 20

Act or failure to act due to the fault of D which causes injury or damage to another person or property

Question 21

What are the most common accidents negligence can apply in?

Answer 21

Car accidents where vehicles are damaged and people injured.
Medical negligence.

• In all these cases the tort of negligence is used as the basis of the claim.
  - It needs proof of fault on the part of the perosn who caused the accident

Question 22

In what civil case was negligence defined?

Answer 22

Blythe v Birmingham Waterworks Co. (1856)

Defined as a ‘failing to do something which the reasonable person would do or doing something which the reasonable person would not do’
- From this definition it can be seen that negligence can result from either an act or an omission

Question 23

Is the tort of negligence in statute law?

Answer 23

No. It is a common law tort

Question 24

How are negligence claims settled?

Answer 24

Many settled out of the court if D admits liability for the accident.

However, claim might go to court if D:

 - disputes the amount of damages or
 - the claimant is a child, when the court has to approve the amount of compensation (Agnes Collier case- paralysed after car being hit by other car. Reached £23 million in compensation)

Question 25

What has to be proved in a negligence claim?

Answer 25

1) Duty of care
a) reasonably foreseeable harm
b) proximity between the parties
c) fair, just and reasonable to impose duty

2) Breach of duty
- D falls below standard of care appropriate to the degree of risk

3) Damage caused
a) D’s breach causes damage
b) damage is reasonably foreseeable

= liability in negligence

Question 26

What is occupiers’ liability in tort law? Where is it defined?

Answer 26

Claim similar to that of negligence.

Branch of negligence when C suffers personal injury while on the occupier’s premises.

Unlike negligence, OL has been created by statute: there are 2 separate acts:

 1. The Occupiers' Liability Act 1957
 2. The Occupiers' Liability Act 1984

Question 27

What does the The Occupiers’ Liability Act 1957 provide?

Answer 27

Occupier of premises owes a duty of care to lawful visitors (someone who is on premises with permission of occupier).

 - Duty that is owed called the COMMON DUTY OF CARE
 - If duty broken and the visitor injured, they are entitled to receive compensation, including proprietary damages such as clothing.

Question 28

What does the The Occupiers’ Liability Act 1984 provide?

Answer 28

Allows claims by trespassers who are injured on occupier’s property.
- Trespasser is someone who does not have the occupier’s permission to be on the premises.

 - Trespasser owed a duty of care, though different from the one owed to lawful visitor
 - If they are injured due to a danger on the premises, they will be able to claim compensation, but only for personal injury.

Question 29

What do negligence claims and occupier’s liability claims have in common/different?

Answer 29

BOTH:

 - Breach of duty by occupier shows fault on the part of the occupier
 - D breaches duty of care
 - Claimant suffers loss or injury
 - If D is liable they are ordered to pay compensation

DIFFERENT:

 - Negligence: Injury happens on public place, may also occur on private property
 - Occupier's liability: Injury happens on occupier's property

 - Negligence: D owes C duty of care
 - OL: D owes C the common duty of care

Question 30

What is economic loss & negligent misstatement in tort law?

Answer 30

Claim based on negligence so C will 1st have to prove D was negligent (at fault)- usually when D gives negligent advise which results in loss of $ to C.
- Usually no contract between the parties.

In addition to proving negligence, C must show existence of a ‘special relationship’- to prevent floodgates opening to too many claims.

Question 31

What is psychiatric injury or nervous shock in tort law?

Answer 31

Claim based on negligence so C must 1st prove D was negligent (at fault).

 - C will have suffered mental injury instead of/as well as physical injury.
       - This injury severe enough to cause loss.

Question 32

What will the usual loss be for a claim of psychiatric injury/nervous shock?

Answer 32

Loss of earnings as C will be unable to work for a period of time as a result of injury.

Question 33

What happens when C successfully proves their tort claim?

Answer 33

They will be entitled to a remedy

REMEDY: Way in which a court will satisfy a claim when injury or damage has been suffered and proved. In tort remedy will usually be damages or occasionally an injunction.

• Damages can place C in same position as if the tort hadn’t been committed where claim is for damage to property.
• If C has suffered disabling personal injury, this is not possible.

Question 34

How are damages divided?

Answer 34

1- SPECIAL DAMAGES

- Cover the period up to the trial
- Cover claims that can be specifically calculated. 
- For personal injury claims, these include the cost of treatment or loss of wages. 

2- GENERAL DAMAGES

 - Cover the period after the trial
 - Include the pain and suffering as a result of the accident, future loss of earnings, future medical costs and loss of amenity (enjoyment of life)

Question 35

What happens in different types of claims in relation to damages?

Answer 35

• In PERSONAL INJURY claims, where injuries are severe and amount of damages large, C will hope that D is insured and will aim to recover compensation from D’s insurance company.
• In a claim for DAMAGED PROPERTY, amount of damages will likely be smaller that a personal injury claim. Amount of compensation claimed will be what is required to replace or repair damaged property.
• In claim for NUISANCE, C will often seek an injunction. If D does not follow the order, court can impose further sanctions such as a fine or even imprisonment.