BPP Manual Chapter 1

Question 1

What does the word ‘tort’ mean?

Answer 1

‘harm’ or ‘a wrong’

Question 2

What situations does tort law cover?

Answer 2

situations where legal action results from the breach of a general duty fixed by civil law

Question 3

What is the person who commits a tort called? What is the other party called?

Answer 3

a “tortfeasor”. Other party is the “wronged” or “innocent” party

Question 4

What does it mean if a wrong is “actionable per se”?

Answer 4

a tort has been established that is actionable by itself, even though the wronged party has not shown they have suffered damage.

Question 5

How is tort law different to criminal law? (2)

Answer 5

1. Criminal law is public law; tort is private law (between individuals).
2. “the punishment must fit the crime” vs “the level of compensation must suit the tort”.

Question 6

How is tort law different to contract law?

Answer 6

contracts are entered into voluntarily whereas tortious duties apply whether we agree or not.

Question 7

What does the term ‘the law of obligations’ refer to?

Answer 7

actions made up of a combination of tort and contract law.

Question 8

Other than that a tortfeasor carried out a particular act, what else usually needs to be demonstrated?

Answer 8

that the tortfeasor did so with a particular state of mind:
intention
negligence
malice

Question 9

What does ‘intention’ mean in the context of a tortfeasor’s state of mind?

Answer 9

that the tortfeasor deliberately and knowingly carried out an act fully cognisant of the consequences

Question 10

What does ‘negligence’ mean in the context of a tortfeasor’s state of mind?

Answer 10

that the tortfeasor was careless about whether or not their act would have certain consequences

Question 11

What does ‘malice’ mean in the context of a tortfeasor’s state of mind?

Answer 11

that the tortfeasor carried out the act out of spite or evil motives

Question 12

How can malice affect the response to a torfeasor carrying out an act that is itself lawfully permitted?

Answer 12

in some situations, malice can make a lawful act tortious. It can also have an impact on the damages awarded to the victim.

Question 13

What are the arguments in favour of a system which focuses on the requirement of fault?

Answer 13

• social conceptions of what is ‘just’
• encourages responsible conduct by holding irresponsible behaviour to account
• limits the number of actions that can be brought
• allocates a burden of guilt

Question 14

What are the arguments against a system which focuses on the requirement of fault?

Answer 14

• some events are the result of randomness rather than something which should be punished
• ‘fault’ encourages tort law to encroach on criminal law; a person can be punished under both systems.
• negligence insurance regularly prevents the fault system from punishing the irresponsible.
• fault is hard to prove

Question 15

What are ‘strict liability torts’?

Answer 15

torts that are committed as soon as the relevant act or omission has occurred regardless of intentions. Only a limited number of them

Question 16

How is a tortfeasor’s defence difference in the case of a strict liability tort?

Answer 16

they can still mount a defence but a defendant cannot extinguish their liability merely by demonstrating they took reasonable care