Chapter 1 General Principles Flashcards
What interests are protected by the law of tort
Personal security including a so he may bring an action in trespass to the person, negligence, damage to reputation.
Property interference with the peaceful enjoyment of land, nuisance, damages or obtain an injunction.
Economic interest pure economic loss - damnum sine injuria harm without legal wrong. And injuria sine damno legal wrong although no harm is caused
What are the two distinct meanings of malice
Unintentional doing of some wrongful act without proper excuse or acting with some collateral or improper motive
What is the general principle of malice
Malice in the sense of an improper reason or purpose is irrelevant in tort law. If a person has a right to do something his motive in doing it is irrelevant. Equally the fact that a person violates another’s right intentionally rather than carelessly does not aggravate the persons responsibility in tort. Bradford Corporation v pickles 1895
Bradford corporation V pickles 1895
D extracted percolating water which flowed under his land resulting in the water is supplied to the claimants reservoir being reduced. D’s motive was to compel see to buy his land at D’s asking price. C’ S action failed as D had a right to extract the water and his motive was irrelevant.
What tort is intention most relevant to?
Tresspass to the person
Nettleship V weston 1971
An objective standard (reasonable man) is applied when making an assessment of d’s conduct by looking back to the time when The conduct caused the harm.
No account is taken of individual disabilities or peculiarities. It has been held that a learner driver is judged by the standard of a qualified driver of average competence, not that of an average learner
What are strict liability offences?
Strict liability provide compensation for conduct irrespective of fault. Strict liability torts have developed in circumstances where the courts think it appropriate, for reasons of justice or economic’s, to make defendants accountable and to compensate claimants for injury regardless of fault
Rylands v Fletcher 1868
Strict liability offence. the liability for accumulating dangerous substances that escape and cause harm to another’s land
What are the main objectives of tort
1 deterrence 2 compensation
Cassell v broome 1972
General agreement that tort law does not normally have a punitive function, as shown by the fact that exemplary damages, designed to punish the defendant, are rarely available
Define deterrence.
May be seen as having an effect on the individual defendant, who may be encouraged to adjust his behaviour by the threat of a sanction such as the possibility of having to pay damages or by an actual sanction being applied. Or an effect on all the people who are involved in risk creating activities, described as general or market deterrence, which has the ultimate effect of spreading the cost of accidents through the community
Define compensation
This objective recognises the needs of the individual victim of the tort to have his loss compensated. Compensation transfers the costs of an accident from the innocent victim to the culpable defendant. However, the cost of bringing a civil action is so high that very few accident victims bother to sue unless the defendant is insured and, in most cases, the compensation is paid by the insurance company and not the individual defendant
Identify two differences between tort and contract
Obligations in contract are said to arise from agreement between the parties whereas obligations in tort are said to arise from the operation of law. However, this traditional distinction is overly simplistic.
Liability in contract is strict whereas liability in tort is predominantly fault based and, in the majority of tort claims, that fault element is negligence
Identify two differences between tort and crime
Tort law is part of the civil law and this is the most important difference between the two areas of law and liability. Criminal law is concerned with wrongdoing which affects society as well as the individual victim and sets out to punish unacceptable criminal behaviour.
From this core distinction all the others follow for example the procedures to be followed, the courts in which the action will be heard, the correct terminology to be used, the standard of proof probably Second most important
Parties - what are the special categories
Sovereign immunity Administration of justice Artificial legal persons or legal advocacy Minors Joint and several liability
Fitzgerald v Lane 1988
Concerned allocation of responsibility between multiple D’s and the C who had been contributorily negligent. C attempted to cross the road at a pelican crossing when the lights were red for pedestrians and green for traffic. Hit by car and thrown into path of second D. HOL identified correct approach to this problem. First the C’a contributory negligence should be assessed against the totality of both defendants conduct and second the proportion of blame of the separate tortfeasors
Blyth v Birmingham Waterworks Co 1856
Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, will do, or doing something which a prudent and reasonable man would not do
What must C prove in order to succeed in a negligence action
D owed him a duty of care D was in breach of that duty C suffered damage or loss which was caused by that breach of duty The damage was not too remote
Donoghue v Stevenson 1932
The neighbour principle
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question
Home Office v Dorset Yacht Co Ltd 1970
HOL approved Lord Atkins statement and gave impetus to the development of negligence.
The time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion
Murphy v Brentwood District Council 1990
Complex structure theory; duty of care - pure economic loss. Overruled Anns v Merton London Borough Council
Caparo Industries Plc v Dickman 1990
Three stage test
foreseeability of harm/damage to the claimant;
Proximity of relationship between D and C;
Is it fair just and reasonable to impose a duty on D in all the circumstances of the case
Foreseeability
D should have foreseen some damage to Cat the time of his alleged negligence act or omission. C must prove that damage to him was foreseeable.
Bourhill v Young 1943
Foreseeability; C alighting from a train when she heard a motor accident but did not see it. C later saw blood on the road and suffered nervous shock, gave birth to a stillborn child. Although reasonably foreseeable that some people would suffer damage as a result of the D’s negligent driving the C’s injury was not foreseeable as she was so far from the accident. She was therefore owed no duty of care
What is the test for foreseeability
When determining whether damage is foreseeable, it is the foresight of the reasonable man that the court takes into account, not the foresight of the defendant. the test is an objective rather than a subjective one
Do all torts require C to prove damage?
No. Most torts are only actionable if some damage, recognised by law, has been suffered by the claimant but there are torts which are described as injuria sine damno which means that a tort or a legal wrong - injuria May be committed without (sine) The claimant having to prove damage (damno). Such to include all forms of trespass and liable
