Chapter 22- Rules and theory of the law of tort

Question 1

What does liable mean?

Answer 1

The judges decision that the case against the defendant is proved and that the defendant should pay compensation or, in the case of Nuisance, may be subject to an injunction

Question 2

What is civil law mainly intending to do and what is it concerned with?

Answer 2

Civil law is mainly intended to settle disputes, not punish wrongdoing, and is concerned with the relationship between individuals

Question 3

What does tort mean?

Answer 3

A tort is a civil wrong and compensates a person who has suffered loss, been injured or whose property is damaged

Question 4

If a claimant is successful in proving their case, what remedies will they be asking court to award?

Answer 4

• Damages (compensation)

- Injunctions (order from court to stop doing something such as noise after 10 pm)

Question 5

In a civil claim, what will the claimant have to do?

Answer 5

• prepare their claim and initial evidence

- Suggest the amount of damages they are intending to claim (to issue the claim in the correct court)

Question 6

What does the judge sit alone to decide?

Answer 6

• the liability
• how much damages should be paid
• if the winning party is entitled to the payment of their legal costs being paid by the losing party

Question 7

When can either party appeal against the judges decision?

Answer 7

• against liability= may be because the judge misdirected themselves on the relevant law
• against the amount of damages awarded

Question 8

What is the court system for dealing with tort claims?

Answer 8

1st) Small claims- County Court- Court of appeal- Supreme court
2nd) High court- court of appeal- supreme court
3rd) High court - leapfrog appeal -Supreme court

Question 9

What is the burden of proof in civil cases?

Answer 9

‘on the balance of probabilities’

Question 10

What defences are available to defendants in the civil court?

Answer 10

• dispute the claimant’s case
• suggest the claimant wholly or partly caused their own injury
• Consent or contributory negligence

Question 11

what is a remedy?

Answer 11

• The way in which a court will enforce or satisfy a claim when an injury or damage has been suffered and proved
• The remedy will usually be damages or an injunction

Question 12

What are special and general damages, in regards to when a claimant has suffered a disabling injury?

Answer 12

• Special= cover the period up to trial and cover claims that can be specifically calculated, for personal injury claims these include the cost of treatment or loss of wages
• General= cover the period after trial and include the pain and suffering as a result of the accident, future loss of earnings, future medical costs and any loss of amenity

Question 13

Brief overview of fault

Answer 13

• claimant has to prove defendants fault with evidence
• Negligence claim= the evidence will have to show how and why the accident happened and that it was due to wrong doing of the defendant= known as a breach of duty
• This can be expensive for the claimant
• If they can’t produce sufficient evidence they wont receive compensation even if they have a physical injury

Question 14

Brief overview of strict liability

Answer 14

• It is a civil action where fault of the defendant does not need to be proved
• usually be cheaper and simpler for the claimant to prove as they don’t require evidence
• Strict liability torts are; nuisance, Rylands v Fletcher and vicarious liability

Question 15

Brief overview of balancing interests and tort

Answer 15

• Rudolf von Jhering analysed law in society
• In his view the purpose of law is to secure social life (physical existence and ideal values) and this determines the content of law
• Developed the scheme of interests and designated them as individual, state and public
• Didn’t develop a successful means of evaluation of the interests against each other
• This was further developed by Roscoe Pound who identified public and private interests, claiming a just result could be achieved if interests were balanced
• In Miller v Jackson;
• public interest-represented by the local community and cricket club using the field by their house whenever
• private interest- they were unable to use their garden due to the cricket balls being hit in the garden
• court of appeal ruled with public interest

Question 16

Brief overview of morality and tort

Answer 16

• moral values of society law a framework as to how people should behave within that society
• the law of the country will generally reflect the moral values of the majority within that country
• But morals can differ from people to people

Question 17

Brief overview of justice and tort

Answer 17

• According to Lord Wright it’s difficult to define exactly what justice is
• peoples idea of what justice is may differ depending on what is at stake may differ widely
• one approach is the equal and consistent application of rules such as whether a duty of care exists
• Tort sometimes can’t provide justice because of the remedies available= what if they lost a limb, they can’t then return to normal life

Question 18

Brief overview of negligence and occupiers liability

Answer 18

• The claimant will have suffered loss or injury due to the defendants fault
• In each case the defendant will owe a duty of care to the claimant, the duty will have been broken and the claimant will have suffered loss or injury from the breach of duty
• And the claimant will be looking to claim compensation