Concepts Flashcards
What are the three concepts in tort law?
-Fault
-Morality
-Principles of tort law
How is fault defined?
OED defines as ‘something wrongly done; mistake, culpability’
How does the legal system use fault?
Fault-based legal system - used as a marker of blame that imposes responsibility and therefore justifies imposition of penalties or who to compensate - D’s liability is based on their degree of fault
How is tort based around fault?
Claimant can only obtain damages if someone else is to blame, supports individual responsibility - While criminal must be beyond reasonable doubt, tort is simply on the balance of probabilities
Why should liability in tort be based on fault?
Moral responsibility - D should be liable for their own actions and take blame for wrongdoings
Deterrent - encourages caution for careless or reckless behaviours
Why should liability in tort not be around fault?
Compensation over justice - it can be difficult to prove and C will not recieve any damages if fault isnt proven
Complexity and Cost - lots of evidence needed to prove fault, especially against a large company
What is morality in tort law?
The principles concerning the distinction between right and wrong, good or bad behaviour
How is law defined in Law&Morality? (tort law)
Sir John Salmond - ‘the body of principles recognised and applied by the state in the administration of justice.’
How is Morality defined in Law&Morality? (tort law)
Phil Harris defines as a ‘set of beliefs, values and principles and standards of behaviour’
What are the characteristics of legal rules? (Law&Morality)
Compliance is compulsory, breach results in sanctions from the state and legal rules take effect at a precise time
What are characteristics of moral rules? (Law&Morality)
Compliance is not required, breach results in societal pressure instead of punishment, moral rules will develop gradually with society
What is ‘Legal Moralism’? refer to a specific individual (Law&Morality)
Lord Devlin - the law is based on moral code that holds society together, so we should have a basic agreement of morality that is enshrined and enforced in law
What is ‘Legal Liberalism’? refer to a specific individual (Law&Morality)
Professor Hart - using the law to enforce morality is unacceptable as it freezes morality in time, the law should allow people to be free unless this freedom harms others
What is public policy? (Theories of Tort)
Factors the courts will consider when reaching a decision:
-Floodgates
-Fairness on both D and C
-Public Interest
-Interest of Justice
