Ch 1: Law Of Tort Flashcards
What is a Tort?
A tort involves the infringement of a legal right or a breach of a legal duty which gives rise to a claim in civil court
What are the differences between Tory claims and Criminal charges?
1) Tort claims seek a remedy as compensation. Criminal actions seek punishment.
2) Tort claims are brought by the injured person. Criminal are brought by the CPS
3) Tort cases are dealt in Civil Court not Criminal Court
What are the differences between Tort and Contract Cases?
- In contract the obligations are fixed as per the terms.
- In Tort, obligations are defined by rules (often Judge made)
- Contract claims require a contract between parties. Tort does not.
- obligations in contracts are voluntary. Tort obligations are imposed.
Can a claim be made under both Tort and Contract/Criminal Law?
Yes. All can run simultaneously. However a claimant cannot recover their loss more than once.
What practical issues limit the ability of Torts to achieve compensation?
- Victims must attend court to achieve compensation instead of being compensated at point of need.
- Litigation costs money and victims may be unable to afford legal costs
- The defendant may be financially unable to compensate
What are the functions of Law of Tort?
- Compensation
- Deterrance
- Justice
- Vindication of Rights
What is a Tort “actionable per se”
A Tort where no actual injury or damage need have occurred - the infringement of a right itself is “harm”
Are all types of Harm protected by Tort?
No. Tort law defines specific Harms. If a Harm falls outside these, a claim will fail (e.g certain types of emotional distress)
What ways does the HRA 1998 impact Tort?
1) Inspired law change
2) on other cases, courts have not extended law to cover the HRA
3) it is at the discretion of the judge the impact of the HRA on individual cases
What is a core challenge with Tort of Defamation?
Balancing right to reputation vs the right to free speech
What is a “prime facie” case?
A case in principle - a case which meets all criteria for a successful claim - unless a defendant has an adequate defence
Are there any limitations to the parties in a Tort?
Under 18s must conduct litigation through a “litigation friend”.
Note: Parents are not liable legally or financially for the torts of their children
What happens when a subject of a Tort dies?
Any claim survives and is taken over by their representatives
What is limitation period for Tort claims?
Generally 6 years, with exceptions.
Defamation must be brought within 1 year
Personal injury claims within 3 years
What are the steps to analyze a Tort case?
- Identify all claimants and defendants
- Identify nature of loss
- Consider which Torts are relevant
- Explain elements of Torts
- Apply law to the facts
- Identify any arguable defenses and discuss
- Reach a conclusion on liability
- Consider possible remedies
