Introduction into the Law of Tort Flashcards
what is a tort?
a vicil wrong in the sense that it is committed against an individual rather than the state
what is a person who commits a tort called?
a ‘tortfeasor’
what does the law of tort govern?
what happens when one person sues another peoson because of what that other person has done
what courts hear tort cases?
civil courts (county or High)
what are examples of torts?
negligence (surgeon), nuisance, trespass, libel, negligence
what is the difference between tort and crime?
crime gives rise to criminal liability, but torts give rise to liability in the civil of tort
can you have both tortious and criminal liability?
yes
what is meant by damages?
the award of a sum of money for infringment of a protected interest
what is an injunction?
a court order
what the model to represent liability?
act (or omission)+ causation+ fault+protected interest+damage= liability
what are torts that don’t require fault called?
torts of strict liability
what is the paradigm tort?
an act or omission by the defendant which cases damage to the claimant- the damage must be caused by the defendant and be a kid of harm recognised as attracting legal liability
what is damnum sine injuria?
an act/omission of the defendant may have caused damage to the claimant but the claimant may have no action because the interest affected may not be protected by law
what is injuria sine damno?
a tort is actionable per se with no proof of damage
who are tort claims brought by?
the injured person who will be seeking a remedy to compensate them
what are the differences between tort and contract law?
in contract, the parties’ obligations are fixed by the terms, but in tort the liability does not depend on any consensus between the parties but rather by rules
what is the main function of a tort claim?
compensation of the victim?
what are the functions of the law of tort?
Compensation, deterrence, justice, vindication of rights
what are the two aspects of justice?
retribution against the wrongdoer, compensation for the victim
what does the claimant need to do to be successful in a claim?
satisfy the particular requirements of the particular tort
does tort law protect against all types of harm?
no
what kind of harms are not protected by tort law?
grief, anger
what considerations may hamper a victim’s ability to use the law of tort to claim compensation?
have to go to court which could lead to delays of compensation, litigation costs money so they must be able to pay the other parties’ legal fees if they lose, whether the D can even afford to compensate
how does the law of tort function to deter?
e.g. someone less likely to accuse someone of theft if they know they may have to pay for damages
what is the ECHR?
a written agreement/treaty to protect people from harm
how is the HRA 1998 related to the ECHR?
the HRA gives effect to the ECHR e.g. s 6 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right
what must the claimant do to succeed in a tort claim?
prove the elements of the tort on balance of probabilities
what is the general limitation time period for tort cases?
6 years from when the cause of action arises but some special cases e.g. 1 year for defamation, 3 years for personal injury
what is the tort of trespass to a person?
umbrella term for 3 separate torts: assault, battery and false imprisonment
how is assault/battery different to negligence?
there must be intent- carelessness would fall under the negligence tort
what is the definition of battery?
intentional direct application of unlawful force to another person
what are the requirements of battery?
unlawful force, intentional conduct, direct application of force
what is the definition of assault?
intentional act by the defendant that causes anothe person to reasonably apprehend the immediate infliction of a battery upon them
what case demonstrates that it isn’t necessary for the defendant i intend the consequences of their actions?
Wilson v Pringle 1986
what are the requirements of assault?
intentional conduct by the defendant, reasonable apprehension by the claimant of an immediate infliction of a battery
what case demonstrates that it is necessary for the defendant to intend that the claimant apprehends the infliction of battery?
Bici v Ministry of Defence 2004
what case demonstrates that words alone can be assault?
R v Ireland
what defences may a D use in a tort claim?
consent e.g. operations, rugby, lawful arrest, defence of the person, defence of property, necessity, provocation
what is the tort of negligence?
when the law provides compensation for harm caused by careless behaviour
what can negligence be defined as?
a breach of legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant
which elements (in order) should be considered for a possible claim in the tort of negligence?
did the D owe the C a duty of care? Was the D in breach of the duty of care? did this breach cause damage to the C? are any defences available to the D?
what are established duty situations
situiations when it is already clear from case law that a duty of care is owed
what kind of law is the tort of negligence?
common law tort- the law governing it is made by the courts i.e. not an AoP
what are novel duty situations/the neighbour test?
test to be applied to determine whether or not a given novel situation gives rise to a legal duty of care
in what case was the 3 part test introduced to test for DoC in novel situations? i.e. Neighbour principle
Caparo Industries v Dickman 1990
what are the elements of the 3 part test of the neighbour principle?
reasonable foresight of harm to C, sufficient proximity of relationship between C and D, that it is fair just and reasonable to impose a duty
in what situations may duty of care be limited?
omissions e.g. failure of local authority to improve the road junction, pure economic loss e.g. loss of investments caused by journalist, pure psychiatric harm e.g. victims of train crash
what does the general rule ‘no liability for omissions’ mean?
you do not owe a duty to the word for doing nothing to prevent harm
what case is used to demonstrate the no liability for omissions rule?
Stovin v Wise 1996
what are the exceptions to the general rule of no liability for omissions?
when there is a duty to act positively if a person has some sort of power or control over the other person or object e.g. employer and employee
what are the factors of the two-part test for breach of duty?
court assesses how the D ought to have behaved (a q of law), then decides whether the D’s conduct fell below the required standard (a q of fact)
what are ‘special standards’?
situations where the courts have set special standards after recognising it would be inappropriate to apply the normal reasonable person test
what is the special standard unskilled defendant?
no allowance should be made for the defendant’s inexperience in judging whether they had breached the duty of care owed
what is the special standard skilled defendant?
e.g. a doctor would show a greater degree at skill and care than the reasonable person in some situations e.g. Bolan v Friern Hospital Management Committee 1957 as they must meet the standards of tehir profession
what is the special standard children?
it would be unfair to expect a child to satisfy the standard reasonable person test without modification
what is common practice factor?
Ds sued in negligence may be able to escape liability if they can show that they complied with the accepted practice in their trade or profession
what is Res ipsa loquitur?
‘the thing speaks for itself’- it raises prima facie inference of negligence against the D who then has to provide a reasonable explanation of how the accident could have occurred without negligence
what is the Civil Evidence Act 1968?
a D who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings to have committed that offence
how does the Civil Evidence Act 1968 help the claimant?
in a claim where the defendant has been convicted involves careless conduct to use this conviction as evidence
