Concept Essays (Tort) Flashcards
What is an example of the UK having a fault based legal system?
Psychiatric injury is based on fault as the D has done something negligent causing the C to suffer and so is at fault for C’s condition as they created the ‘zone of danger’
What is the purpose of the UK having a fault-based legal system?
- It identifies the person’s responsibility and - Imposes punishment or sanctions
- The more at fault, the more the liability
- Consistent with our idea of justice
What is the definition of fault (according to the Oxford English Dictionary)?
Something wrongly done, a mistake, blame or culpability
What is fault a marker of and what does this mean?
It is a marker of blame which imposes responsibility and therefore justifies sanctions or penalties given/ identifies the person who should give compensation
What is an example of fault justifying sanctions?
Rylands v Fletcher is an example of this as if a person brings something onto their land and allows the foreseeable escape to occur, they will have to pay compensation for their actions
What does it mean if the law on tort is mainly based on fault?
The claimant can only obtain compensation if they can prove the D is to blame, which is based on the notion of individual responsibility - those who act in a certain way will deal with the consequences
What is an example of individual responsibility for fault?
Negligence - the D will clearly be at fault for not acting reasonably
What are some reasons tort law should/should not be based on fault?
FOR - Individuals must take responsibility for their actions, businesses are forced to adopt higher standards, raises the standards for people to protect others
AGAINST - It seems obviously wrong to impose liability on someone unless it can be proved they have done wrong, no-fault liability cant be justified just to provide comp for injured people
What are some ways to make links to fault in tort?
Negligence: damages will only be awarded if the damage is not too remote, Nuisance: the defences make D less at fault, RvF: D is not at fault if act of God or if act of stranger
What is morality defined as in law and morality?
Phil Harris: ‘a set of beliefs, values, principles and standards of behaviour’
and it can differ as it dependent on our culture/religion - society is pluralistic
What is law defined as in law and morality?
Sir John Salmond: ‘the body of principles recognised and applied by the state in the administration of justice’
What are some characteristics of legal rules in law and morality?
Compliance is compulsory, Breach will result in state sanctions, legal rules take place at specific time
What are some characteristics of moral rules in law and morality?
Compliance is not required by the state, people have different moral values, develop over time
What are the two arguments for and against morality in law?
Legal Liberalism and Legal Moralism
What is legal liberalism in law and morality?
The idea that individuals should have the freedom to be expressed as they please so morality shouldn’t be in law unless it harms others (Stuart Mill - harm principle, agreed on by Professor Hart as it infringes the rights of the individual)
What is legal moralism in law and morality?
There is a common morality that should be enforced by the law (Lord Devlin argued that the law is based on moral and legal principles and that the law should be judged by the standard of a ‘right-minded persons’, which means a minimum standard of morality)
What are some morality links for tort law?
Morally and legally correct that you ensure all visitors on your property are safe, it is morally wrong for the D to act out of malice and the law reflects this
What is public policy in tort law?
The idea of public policy factors is something that courts consider when deciding outcomes as well as focussing on what is in the public interest, meaning what is fair and just
What policy factors do judges consider?
Loss allocation(Vicarious Liability - who can afford it?), floodgates (Alcock control mechanisms), any public considerations (Strict liability - road safety)
What are the examples of public policy in different areas of law?
Criminal: self-defence is based on public policy as it is in the public interest to allow people to use reasonable force to defend themselves - they should have this right
Tort: psych injury is in the public interest as its easier for P victims to claim; in public interest as they were in the zone of danger so deserve more compensation
Contract: Consumer Rights 2005 protects consumers which is in public interest as they are the weaker party and more deserving of compensation
What are some links to public policy in tort law?
Owing a d.o.c to neighbours is in public interest as compensation is deserved if you’ve been affected by their actions, not being able to claim for pure economic loss as it would open the floodgates
