lecture 1- introduction to tort & negligence Flashcards
what is tort law?
define
↳it is a branch of law which provides a remedy for a party who has suffered the breach of a protected interest
↳it deals with civil wrongs
↳‘Tort’ derives from the latin ‘torturm’ meaning wisted/wrong
↳different harms (wrongful conduct) = different torts
↳general principle of civil wrongs
General duty not to harm or injury others
↳NOTE: Not all interests are protected
eg: ** damnum sine injura **: harm is suffered, but claimants interest is not protected
↳vs contract law: in tort, duties are primarily fixed by law and owed towards persons generally
↳vs criminal law: in tort, objective is to compensate the victim (rather than punishing the wrongdoer)
define the following:
↳branch
↳civil
↳wrongs
↳Tortious act
↳Tortious liability
↳Tortfeasor
↳branch: part of Private law (vs Public law) / law of obligations
↳ Civil: as opposed to criminal offences (although they might overlap)
↳Wrongs: if certain requirments are met, legal remedies are available
↳Tortious act: a tort
↳Tortious liability: liability for harm caused by a breach of duty
↳Tortfeasor: (noun) a person who has commited a tort
what are the aims of tort law
↳Aim: Tort law addresses the consequemces of loss i.e.
↳Compensation: making good the loss which would otherwise have been suffered
↳Deterrence: preventing a loss in the first place by influencing behaviour
↳Justice: corrective Lord Bingham in Fairchild v Glenhaven Funeral Services [2003]: a tort law is about ‘cases which the law may justly hold one party liable to compensate another’
↳See Woodroffe-Hedly v Cuthberston [1997] page 9 for an example
↳NOTE: INSURANCE
↳First-party (loss) insurance
↳Third-party (liability) insurance: Road traffic act 1988 / The employers liability (compulsory insurance) act 1969
↳Suborgation: insurers can take on the rights if the insured in order to persue compensation
> spreads liability costs, undermines tort’s deterrent value
what are the alternative schemes in tort law
social security (state benefit)
↳main source if compensation for accidents and work related disease
↳cheap, quick, and accessible to many
↳no full compensation
↳no need to prove fault
↳paid on periodic basis
↳includes industrial schemes / worksmen compensation act 1897 (latter no need to prove fault)
Charity
↳NHS redress act 2006
↳Ex-gratia compensation schemes
> criminal injuries compensation scheme (CICS) 1964
what is the compensation culture in tort law?
↳It is a very complex phenomenon
↳2004 Better Regulation Task Force: cost lower than 10 other comparable countries
↳CFAs might have contributed: easier to bring proceedings
↳Civil Liability Act 2018
vs fraudulent personal injury claims and high legal fees
what is meant by negligence
Definition: Breach of a legal duty to take care which results in damages to the claimant.
↳NOTE: condult falls below required standard
↳Negligence is the most important tort in practice
what are the elements of tort negligence
Eelements:
↳Duty of care
↳Breach of duty
↳Damage (also known as causation)
> see X & Y v London Borough of Hounslow [2008]
what are the four main questions in negligence
- Does the defendant owe the claimant a DoC?
- has the defendant breached this duty by falling below the required standard of care in the circumstances of the case? (that is, is the defendant at fault?)
- Is the defendant’s breach of their duty both the factual and legal cause of the claimants injury
- Is the defendant able to raise any partial or full defences to the claimants legal action?
↳Strongly policy-based
example: Rondle v Worlsy [1969]: barristers dont owe DoC to their client (immunity extended over the years); only overriding duty lies to the court
↳the Arthur JS Hall v Simons [2000]: immunity abolished
what is meant by physical injury or property damage
↳NOTE: very broad in scope: focus as such is not on the victims interest; it is on the defendants conduct
↳Victims interest is still important though: it must be legally protected
↳Public bodies as defendants (local authorities, schools, police, etc)
↳General reluctance to hold them responsible
↳Subject to different considerations than those of private individuals or organisations
↳Empowered and contrained by statuatory authority
↳** Ultra vires ** (public law concept): acting beyond the powers they have been given (by legislation)
why should we establish DoC?
↳Limitations of liabilty
↳Prior to 1932: case by case situation
* then ** Donoughe v Stevenson ** [1932]: established that manufacturers owe general DoC to consumers (Lord Atkin)
↳Neighbour principle: ‘You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour. Who the, in law, is my neighbour? the answer seems to be- persons who are so closely and directly affected by my actions that i ought reasonably to have them in contemplation as being so affected when i am directing my mind to the acts or omissions which are called in question.’
what are the problems in establishing DoC?
- Speaks of omissions but law of negligence as a general rule does not impose a DoC in respect of failure to act
- What damages are covered? Negligence favours personal injury and property damage
