Law Of Tort Flashcards
What is law of Tort
‘Tort’-means wrong in French
-it is when somebody has suffered a civil wrong(persons right), either loss, damage to property. And this can be remedied with compensation
Remedies
To a successful claimant can either mean damage or form of injunction
Injunction
Is a court order to stop doing something e.g having loud parties late at night and etc..
A court procedure in a civil trial
Claimant prepares his claim and provides evidence to show his case, also make clear of the amount of damage he is seeking.
- the judge who sit alone will decide which track to pursue the case
- appeals can be launched either liability or the amount of damages
- burden of proof is on the claimant
Remedies
Two types of damages:
- special damages- cover claims that can be specifically calculated, these can cover the period up to the trial .
- general damages-cover the period after the trial where the claimant has suffered a long term injury and may not be able to work or medical costs
Nuisance claims
The award is usually some kind of injunction, which if the D does not observe can result in a fine or even imprisonment.
Overview of tort
There is two different types of torts
- negligence
- occupiers
The claimant needs to provide sufficient evadiendo to prove that there has been a fault on the part of D
It is up to the claimant to provide a sufficient standard of proof, to the judge that he is entitled to the claim.
What is negligence
An act or failure to act which cause a injury or damage to another person
- the claimant must provide evidence for the D to blame/he must prove that D owed him a duty of care
- the judge must decide on the level of fault based of from probabilities
- if the evidence is not sufficient than he might be left with no compensation
Duty of care
It is the legal relationship between the parties
Neighbour principle
The person who is owed a duty of care by the defendant, it is anyone who is ought to have in mind who might potentially be injured by your act of omission.
The caparo test
It is a three part test which replaced the neighbour principle:
- was damage or harm reasonably foreseeable?
- is there a sufficient proximate relationship between the claimant and defendant?
- is it fair, just and reasonable to impose a duty?
Three part test
An update of the neighbourhood principle to show who is owed a duty of care negligence. All three have to be met in order to satisfy the test.
Damage or reasonably foreseeable harm and proximity of relationship
Whether the injury is predictable on the facts of the case
Proximity of relationships
Duty of care will only exist if the claimant and the defendant are sufficiently close.
Fair, just and reasonable to impose a duty
This is the final part of the test.
-this is where the court needs to decide when it is reasonable to assume a duty of care
Breach of duty
The claimant must prove that firstly a duty of care is owed and secondly that it has been breached(make a gap or like break through)
Reasonable person
Now is considered as a ordinary person in the street, doing normal tasks-reasonable person performing the task competently
Damage
Damage and damages are different.
There are two parts to damage:
-causation and remoteness of damage
causation is the ides that the breach of duty has caused the injury-it’s also called a factual causation-and this decided if the damage suffered was predictable
Factual causation and the ‘but for’ test
If it can be proved that but for the defendants actions or omission injury or damage would not have occurred, then there is no need to find legal causation
Legal causation
This is the intervening event that can break the causation of chain
For e.g a kid breaks legs on stair but then he’s in the car and there is a accident and damages head.
-this is called the novus actus intervenies-it is where the chain of events leading from one accident, you have another which is totally unrelated.
Remoteness of damage
The defendant is liable for the injury or damage that is reasonably foreseeable
To types of damages and their meaning
Damage-the legal test of a loss to the claimant from a breach of duty
Damages-compensation payable to the claimant who proves that the defendant is negligent
Types of injury to be foreseeable
That the defendant will be responsible for the type of injury
-the defendant can be liable for the type of injury if it was reasonably foreseeable and the Defendant can predict or expect from his actions
Take your victim as you find him
If the claimant had a pre-existing condition that is made worse by an injury that was reasonably foreseeable, than the defendant can also be held responsible.
Res ipsa loquitur(the thing speaks for itself)
In certain situations, the claimant may not know exactly what happened, only that a breach of care and negligence has occurred and that he has suffered an injury or damage
- Claimant needs to prove on the balance of probabilities that:
1. the defendant was in control of the situation which caused the injury
2. the accident would not have happened but for the defendants negligence
3. There is no other explanation for the injury
Cost
- claims can incur costs for the claimant
- if there were no witnesses, special accident investigators or the police might to be used
- Medical evidence for injury
- valuations for property lost or damage
Delays
- Most defendants are covered by insurance
- once an injury or damage has been reported, the insurance company takes over the case
- insurance companies are often suspicious, and they will try to investigate to make sure its genuine
- it can also take a lot of time for them to get all the evidence and to present them in a course
- 3 year limit after the accident to file a claim, 6 on damage to pottery
Need for lawyers
-In personal injury claims, a lawyer may be needed to convince the defendant or his insurance company that his client has a valid claim
-a lawyer will also be needed if settlement can not be reached and the case goes to court-this can add to the cost and delay
-there is a ‘no win no fee’ arrangement, the lawyers will ask for the payment of a premium, this can be pre-paid or paid after the event
They will only do this if there is a 75% chance of success
Confrontation
-these situations can be quite confrontational which makes negotiations less likely, even more so if the case goes to court
Judicial law making
- tort law is for most part not statutory and has developed form judicial precedent(legal case that establishes a rule)
- sometimes judges are criticised for having a lack of understanding of the economic and social judgements that need to be taken in the area of torts.
- however judges are usually restrained in their to develop rules of law and when parliament does intervene, such as in the compensation act 2006, it’s not always well thought
Establishing the law duty care
Courts have been cautious here:
-Duty of care cannot be imposed on the police when they do not know the victim
Policy
- judges in the higher court sometimes have to make decisions that go against precedent
- they would only do this to plug a gap in the law or to ensure a just and fair outcome.
- but it creates uncertainty
- clarity and predictability are the most important elements in the law, so developing policy principles in this way can confuse and mislead people
Changing the law
- sometimes judges in the appeal court ps recognise that some long established principles are wrong-so they make a new principle
- the definition of a doctors duty of care in the Bolam case defines negligence in medicine
- changing codes of practice in different professions, such as the medical profession may also influence this
