General Principles Flashcards
What is a Tort
a tort is a civil wrong – differs from a criminal wrong. Law of obligation which include contractual obligation – contract law
What are the protected inerests in Tort
Bodily integrity - (body & Mind)
Property
Economic Intrests
What is Bodily integrity protected intrest
included Personal injury, False imprisonment, assult, battery
What is Property protected intrest
Not just actual damage includes peaqceful enjoyment of land
What is Economic Intrest protected intrest
any consequential finanical loss that direvtly stems form the “actual” damage ie loss of earnings/medical costs/ cost of Alternate car/housing costs.
Is Pure Economic loss a protected intrest
No - Pure economic loss very rarely recoverable in tort unless there is a contractual obligation
What is Damnum sine Injuria
Harm without legal wrong ie put out of business by lawful reason ie competivive stratergies ie another business the same as yours opens up and takes your business
What is Injuria Sine Damno
Torts that do not require there to be actual damage for an action to be taken
What is the Mental Element in Tort standard
Defendant interferes with a recognised protected intrest of the claimant and the mental state of the defendant. Malice/Intention/Negligence
What is Malice in Tort
The international doing of some wrongful act without proper excuse
or
acting with some collateral or improper motive.
What is the General Priciple in Tort on Malice (improper reason or purpose)
General principle - Malice in sense of improper reason or purpose is irrelevant - If have the right/motive irrelevant. Vica versa even if right is violated intentionally does not aggravate responsibility
General Principle in Tort on Malice ( Exception)
Malice can be relevant to liblity in matters of defamation/nuisance. It can be held that if the actions of the defendant were done out of malice.
Malice exception in Deformation
If there is found to be malice in deformation this can defeat the defence of fair comment and or qualified privilige
Malice exception in Nuisance
if the defendants actions are found to be malicious and therefore unreasonable in a nuisance this can be a factor in determining that an act whilst legal can constitue a nuisance
What is Intention in Torts
State of Mind is relevant in torts derrived from the old writ of trespass- Objective assessment of the Defendants conduct what was their intent - However if the action was intended even if the consequence wasn’t. If the consequence was foreseeable by a reasonable person Liability is likely to attach.
What is Negligence (Mental Element)
Careless conduct not truly describing a state of mind - an assesment of the conduct by looking back - objective standard - reasonble person test - what woulds a reasonable person done in the same circumstances
What is the Negligence test
objective standard - reasonble person test - what woulds a reasonable person done in the same circumstances - If paticular skill then that of someone with the requisit skills of average competence however it does not take into account an individuals disabilities/peculiarities
What is Strict Liablity
Not necessary to prove fault and/or carelessnes - Burden is reversed the Burden is reversed.
How is strict liablity formed
From statues such as CPA (consumer protection act) OLA (Occupiers Liablity Act) or from Commin law torts such as Nuisance/ Ryland and Flecher/ Vicarious liablity/Defamation
What are the objectives in tort
Deterrance Individual and General or Market and compensation
What is the purpose of Individual Deterrance
to get the individula to change their behaviour/proactice to prevent a simular incident/accident
What is the purpose of General or Market Deterrance
Looks at making the world a safer place in general exampel prior - Caviat cost is normall passed to consumer in the cost of the chnage being reflected in teh cosdt of the goods
What is the purpose of compensation
Put the claimant back into the position they would have been in had the incident not occured and where not possible provide monetry compensation
Other regimes that provide compensation outside of Tort
Criminal Injuries Compendsations Scheme and Industrial Injuries Disablement Benifet Scheme
Statues / Acts for compensation
NHS Redress Act 2006 and Compensation Act 2006
What is the purpose of NHS Redress act 2006
Scheme to enable redress without the need for litigation
What is the purpose of the compensation act 2006
Codifiy exsiting commion law position deterrants ie not to discourage desirable activities and Appologies or offers of tretament not consituiting acceptance of liablity
Connection between Tort and Crime
If found guility of a criminal act liablity in negligence is likely to be found
Connection between Contract & Tort
Created the Law of obligation
Who are the parties
Defendants - Accused wrongdoer - anybody can be a defendants no distinction for age but have some exceptions/rules) (special categories)
Claimant - Injured party
What are the special catagories for Tort
Sovereign Immunity, Administration of Justice, Artificial Legal person, Minors, Joint and Serveral Liablity
What is Sovereign Immunity
Covered by Crown Proceedings act 1947 - Crown as an entity can be held liable for the actions of its servents.agents and as an employer but can not be taken against a soverign in person. Also Crown Proceedings(armed forces) act 1987 Memebers of teh armed forces can bring procceding agaisnt a fellow memeber in exercise of duties
Whats is State Immunity
Covered by Stae Immunity Act 1978 - Foreign Sovereigns may not be sued in english courts unless immunity has been waived
What is the purpose of Administration of Justice immunity
To allow honest and well meaning people to assist in justice even if it means a few dishonest peoiple benifit - Certain acts done in the administrations of Justice atract total immunity ie witnes immunity
Whats is Artificial Legal person
Normally a coropration or limited liablity partnership (LLP) covered by LLP Act 2000 or a Parnership covered by parnership act 1980
What rulesapply to minors
A minor can be sued or sue but the courts procedual requirements state that a minor suing must be done by a person over the age of 18 known as a litigation friend,
Whats is Joint and Serveral Liablity
Whare two or more parties are resobsible for the same single injury the defendant can bring an action agasit one or all although compensation is only paid once can be from one or split between the paries see Civil liablitiy (contribution) act 1978
CASE LAW - Malice - legal right but improper reason
Bradford Corp V Pickles 1895 - Bradford corp extracted water from under Pickles land to intentionally lower the price of the land - Held had legal right to extract the water so the intention of the act was irrelevant
CASE LAW - Malice Action unreasonable and committed out of Malice
Christie V Davey 1893
CASE LAW - Negligence average competence
Nettleship V Weston 1971 Learner driver deemed to be judged by the standards of a qualified driver of average competence rather then those of an average learner driver
CASE LAW - Joint and Serveral Liablity & Contibutory negliangence
Fitgerald V Lane 1988 Claimant crossed road on red light and was struck by D1 & 2
CASE LAW - Minors no defence for infancy
Mullin V Richards 1998 driver aged 17 was but held to the same standard as as driver a year older
CASE LAW - Created a tort of its own name - strict liablity
Ryland and Fletcher 1868
CASE LAW - Compensation Act 2006
Tomlinson V Congleton Borough Council 2003 - CA 2006 codefiys exsitung commin law position - Courts “may” consider what is the standard of resonable care
