Chapter 1 - Introduction to the Law of Tort

Question 1

1.2 - What is Tort?

What is the meaning of tort?

Answer 1

A ‘wrong’ that involves the infringement of a legal right (or breach of legal duty)

Question 2

1.2 - What is Tort?

What is a ‘Tortfeasor’?

Answer 2

Someone who commits a tort and their liability is described as tortious

Question 3

1.2 - What is Tort?

Describe the law of tort

Answer 3

The body of civil law which governs what happens when one person sues another because of what that person’s done

Question 4

1.2 - What is Tort?

Claimant?

Answer 4

The person who is bringing the case (“plaintiff” prior to 1999)

Question 5

1.2 - What is Tort?

Defendant?

Answer 5

the person against whom the case is brought

Question 6

1.2 - What is Tort?

Why do people use the law of tort?

Answer 6

Because they can seek some ‘remedy’ for the wrong they’ve suffered

Question 7

1.2 - What is Tort?

How is tort distinguished from crime?

Answer 7

1. Criminal law governs the relationship between an individual and the rest of the community
2. Civil law (of which tort is part) governs the relationship between individuals

Question 8

1.2 - What is Tort?

Define a ‘tort claim’, and its function

Answer 8

1. Tort claims are brought by the injured person who seeks a remedy (often damages) to compensate them
2. Main function is to compensate the victim

Question 9

1.2 - What is Tort?

Define ‘criminal action’ and its function

Answer 9

1. Brought by a public official (e.g. CPS) rather than the victim.
2. Main function is punishment of the offender

Question 10

1.2 - What is Tort?

What courts deal with tort and criminal cases?

Answer 10

1. Tort cases - civil courts (county or high court)
2. Criminal cases - criminal courts (magistrates’ court or Crown Court)

Question 11

1.2 - What is Tort?

What are 3 similarities between contract and tort?

Answer 11

1. Civil claims - Both are civil claims brought in County/High Court
2. Damages - claimants in contract & tort usually seek damages as the principal remedy
3. Function - they both compensate the claimant for the loss suffered due to defendant’s wrongdoing

Question 12

1.2 - What is Tort?

What are 4 main differences between Tort & Contract?

Answer 12

1. In contract, the parties’ obligations are fixed by the terms of the contract, either implied or expressly agreed in the contract. In cort, liability doesn’t depend on consensus between the parties, it’s determined by (largely judge-made) rules which dictate whether the defendant’s wrongdoing constitutes a tort.
2. In contract, has to be contractual relationship between claimant & defendant before breach of contract can arise (and only the parties can sue). In tort, the scope for liability is much wider. Obligations are impsoed by law, they’re owed to the world at large & not dependent on agreement between the parties.
3. In contract, obligations are voluntarily undertaken as the parties agree to enter a contract. Obligations in tort are imposed on a defendant by law.
4. Damages - In tort, the aim of damages is to put the claimant back into the position tey would have been in if not for the tort. In contract, the aim is to put the claimant into the position they would have been in had the contract been properly performed.

Question 13

1.2 - What is Tort?

In what situations might the law of tort impose obligations concurrently with contract?

Answer 13

• Examples include cases involving doctors, solicitors, and drivers of cars.
• The law of tort imposes obligations on these professionals in addition to any contractual obligations.

Question 14

1.2 - What is Tort?

What is an example of a situation where there is a tort claim but no contract between parties?

Answer 14

E.g. If a buyer purchases a defective product from a seller, there is no contract between the buyer and the manufacturer. However, the buyer may have a tort claim against the manufacturer.

Question 15

1.2 - What is Tort?

Why is it sensible to consider bringing claims in both contract and tort?

Answer 15

While claimants cannot recover their losses more than once, pursuing claims in both contract and tort can safeguard against the possibility of one claim failing.

Question 16

1.3 - Functions of the Law of Tort

What is considered the principal function of the law of tort?

Answer 16

‘Compensation’ for injury or loss

Question 17

1.3 - Functions of the Law of Tort

What are two practical considerations that may limit the effectiveness of tort law in compensating victims?

Answer 17

1. Victims need to go to court to achieve compensation, which can lead to delays.
2. Litigation costs money, and there is very little public funding available for work within the field of tort.

Therefore, even if the victim successfuly sues, it will be a hollow victory if the defendant doesn’t have the means to pay.

Question 18

1.3 - Functions of the Law of Tort

What is a potential solution for victims who cannot afford to pay legal costs in tort cases?

Answer 18

It is sometimes possible to agree with lawyers that they will work on a ‘no win, no fee’ basis.

Question 19

1.3 - Functions of the Law of Tort

What is compulsory insurance in tort law, and why was it introduced?

Answer 19

Compulsory insurance was introduced as a matter of public policy for road and workplace incidents. It ensures that people injured in these common types of incidents can receive compensation, as there would otherwise be an unacceptable number of uncompensated injuries.

Question 20

1.3 - Functions of the Law of Tort

How does insurance affect the impact of tort as a compensation system?

Answer 20

• Insurance indemnifies the defendant against legal liability, effectively guaranteeing compensation for the injured party.
• However, this creates a distortion in the tort system, as victims are often left without an effective remedy unless the defendant is insured, regardless of their need for compensation.

Question 21

Explain the function of deterrence in Tort law

Answer 21

You may think twice about falsely
accusing someone of being a thief, if you know you will have to pay them damages out of your own pocket.

Question 22

How does insurance affect deterrence in tort law?

Answer 22

• Deterrence is less relevant if an insurance company is footing the bill against someone’s compensation bill as they know they won’t have to pay.
• It’s more relevant though when a defendant isn’t insured against the claim

Question 23

How might a tort liability deter someone even if they are insured?

Answer 23

A finding of negligence can damage a defendant’s professional reputation, such as a doctor risking being struck off the Medical Register.

Question 24

What are the two aspects of justice in tort law?

Answer 24

1. Retribution against the wrongdoer
2. Compensation for the victim

Question 25

Why is retribution through tort law considered problematic?

Answer 25

Wrongdoers will rarely pay the damages out of their pokcetes with insurance companies footing the bill

Question 26

Vindication of Rights is another function of tort law: Why are civil claims sometimes brought besides compensation?

Answer 26

• Civil claims are sometimes brought to make a point of principle, initiate an investigation, or provoke authorities into action.
• For example, in some cases the personal representatives of a murder victim have successfully brought proceedings in tort against the alleged murderer, as a means of spurring
  the prosecuting authorities into action

Question 27

Explain how Grenfell Tower fire underlined the deterrence function of tort

Answer 27

• Victims, and families of victims who lost their lives, often wish for the
  wrongdoing of others to be recorded formally.
• Victims/families do not want anyone else to have to experience what they have so in such cases vindication of rights and deterrence may be more important to the claimants than the pursuit of compensation.

Question 28

Does the law of tort provide a remedy becaue someone has suffered loss or harm?

Answer 28

No, the claimant must show that the harm they suffered is a type recognised by the existing law of tort, or persuade the courts to extend the law.

Question 29

Does a claimant always need to suffer tangible harm to bring a tort claim?

Answer 29

No, some torts are said to be ‘actionable per se’. Claims in these torts (e.g. trespass to the person) do not require the claimant to have suffered any actual injury or damage.

Question 30

What types of harm does tort law recognize?

Answer 30

Tort law offers protection for various types of harm, including physical injury, property damage, damage to reputation (defamation), and annoyance caused by nuisance. Some torts, like trespass to the person, are actionable per se, meaning the claimant does not need to prove actual harm.

Question 31

Are all types of harm covered by tort law?

Answer 31

No, tort law does not provide a remedy for all types of harm. Some types of harm, like emotional distress, grief, or anger, are generally not recognized unless they lead to a recognized psychiatric illness. The case of Bradford Corporation v Pickles AC 587 illustrates this limitation, as the defendant’s actions, while malicious, did not cause a legally recognized harm.

Question 32

What are policy limitations in tort law?

Answer 32

Policy considerations can restrict the scope of tort law even when a recognized harm exists. Courts may decline to establish a duty of care in certain situations, effectively barring a negligence claim. This is particularly evident in cases involving public bodies like the police, where unlimited liability could have significant societal consequences.

Question 33

What is the relationship between tort law and human rights?

Answer 33

The Human Rights Act 1998 (HRA 1998), incorporating the European Convention on Human Rights (ECHR) into English law, influences tort law in two ways:
1. Direct alternative: It provides a direct claim against public bodies violating Convention rights, sometimes offering an alternative to a tort action.
2. Indirect influence: It encourages courts to develop tort law principles in a way that aligns with Convention rights, though it does not compel changes to the core principles.

Question 34

How do human rights affect defamation and privacy in tort law?

Answer 34

The ECHR’s Articles 8 (right to privacy) and 10 (freedom of expression) create tension in areas like defamation and privacy:
* Defamation: The tort of defamation protects reputation but can potentially restrict free speech. Courts strive for a balance, with defenses like truth and honest opinion protecting free expression.
* Privacy: Human rights have spurred the development of the action for misuse of private information, derived from breach of confidence, to safeguard privacy interests.

Question 35

What are the key elements of a claim for misuse of private information?

Answer 35

For a successful claim, the claimant must demonstrate:
* Reasonable expectation of privacy: They had a reasonable expectation of privacy regarding the disclosed information.
* No legitimate public interest: There is no overriding public interest justifying the disclosure.

Question 36

What does a claimant need to prove in a tort claim?

Answer 36

To succeed, a claimant must establish the elements of the specific tort, creating a prima facie case. The burden of proof rests with the claimant.

Question 37

What defenses can a defendant raise in a tort claim?

Answer 37

Defendants can raise general defenses applicable to all torts or specific defenses relevant to a particular tort. The burden of proving a defense lies with the defendant.

Question 38

What is the standard of proof in tort cases?

Answer 38

The standard of proof in civil cases, including tort claims, is “on the balance of probabilities,” meaning the claimant must demonstrate that it is more likely than not that the defendant committed the tort. This is a lower standard than the “beyond reasonable doubt” standard used in criminal cases.

Question 39

Who can be parties in a tort claim?

Answer 39

Generally, any individual or legal entity can sue or be sued in tort. Special rules apply to:
* Children: They can sue or be sued through a litigation friend (usually a parent or guardian).
* Companies: Limited companies and partnerships can sue or be sued in their respective names.
* Deceased persons: Claims they had or were subject to generally pass on to their personal representatives.

Question 40

What are limitation periods in tort law?

Answer 40

Limitation periods are time limits within which a tort claim must be filed. The general limitation period is six years from the date the cause of action arises, but exceptions exist for specific torts like defamation (one year) and personal injuries (three years). For child claimants, the clock starts ticking when they reach 18.

Question 41

What is vicarious liability?

Answer 41

Vicarious liability allows an injured party to sue an employer for torts committed by their employees during the course of their employment. This legal principle recognizes that employers have a degree of responsibility for their employees’ actions.

Question 42

What is the process for analyzing a tort action?

Answer 42

A structured approach is crucial for effectively analyzing tort problems. The steps typically involve:
1. Identifying all potential claimants and defendants.
2. Determining the nature of the loss for each claimant.
3. Identifying the relevant torts.
4. Explaining the elements of those torts.
5. Applying the law to the facts, addressing any specific issues.
6. Identifying and evaluating potential defenses.
7. Reaching a conclusion on potential liability.
8. Considering available remedies.

Question 43

What is trespass to the person?

Answer 43

Trespass to the person covers three torts: assault, battery, and false imprisonment. These torts safeguard personal integrity and individual liberty.

Question 44

Define battery.

Answer 44

Battery involves the intentional direct application of unlawful force to another person. It does not require the defendant to intend the consequences, only the action itself.

Question 45

Define assault.

Answer 45

Assault occurs when a defendant’s intentional act causes another person to reasonably apprehend the immediate infliction of a battery. It focuses on the apprehension of unlawful force, not the actual application of force.

Question 46

What constitutes unlawful force in battery?

Answer 46

Unlawful force goes beyond generally acceptable physical contact in everyday life. Examples include punching, kicking, or even medical treatment without consent. Accidental collisions or touching to get someone’s attention would not typically be considered unlawful force.

Question 47

Can words alone amount to an assault?

Answer 47

Yes, words alone can constitute an assault, especially when they create a reasonable apprehension of immediate harm. The landmark case of R v Ireland AC 147 established this principle, emphasizing that spoken words can be as threatening as physical gestures. However, words can also negate an assault if they remove the immediacy of the threat.

Question 48

Explain the rule in Wilkinson v Downton.

Answer 48

This rule addresses intentionally caused harm that falls outside the scope of assault and battery. It applies when a defendant intentionally causes severe emotional distress resulting in physical harm or recognized psychiatric illness. This tort requires tangible damage and is not actionable per se.

Question 49

What are some common defenses to trespass to the person?

Answer 49

Common defenses include:
* Consent: The claimant agreed to the contact, such as in medical treatment or sports.
* Lawful arrest: Police officers acting within their legal authority.
* Self-defense: Using reasonable force to protect oneself from an attack.
* Necessity: Acting to prevent greater harm, such as providing medical care to an unconscious person.

Question 50

What is defamation?

Answer 50

Defamation is a tort protecting an individual’s reputation. It occurs when a defendant publishes a statement that lowers the claimant’s reputation in the eyes of right-thinking members of society.

Question 51

What are the two forms of defamation?

Answer 51

The two forms are:
* Libel: Defamation in a permanent form, such as written or recorded material.
* Slander: Defamation in a temporary form, such as spoken words.

Question 52

What are the elements a claimant must prove in a defamation case?

Answer 52

The claimant must prove that:
* The words were defamatory.
* The words referred to the claimant.
* The words were published.

Question 53

What are some categories of defamatory material?

Answer 53

Statements considered defamatory can include those that:
* Lower the claimant’s reputation in the eyes of right-thinking people.
* Cause the claimant to be shunned or avoided.
* Expose the claimant to hatred, contempt, or ridicule.

Question 54

What are some defenses to a defamation claim?

Answer 54

Key defenses include:
* Truth: The statement was substantially true.
* Honest opinion: The statement was an honestly held opinion based on facts.
* Public interest: Publishing the statement was in the public interest.
* Qualified privilege: The statement was made on an occasion where the maker had a duty to speak and the recipient had an interest in hearing the information.

Question 55

What is the action for misuse of private information?

Answer 55

This action, developed from the equitable principle of breach of confidence, protects individuals from unauthorized disclosure of private information.

Question 56

What are the conditions for a successful claim for misuse of private information?

Answer 56

Two conditions must be met:
1. Reasonable expectation of privacy: The claimant had a reasonable expectation that the information would remain private.
2. No legitimate public interest: There is no overriding public interest that justifies disclosing the information.