the Essential Festures Of The Law Of Tort

Question 1

What is a tort?

Answer 1

A civil wrong committed by one party against the other
Independently of any contractual relationship between them.

The victim can pursue a claim against the ‘tortfeasor’ (the person who has committed the wrongful ac) without there being any formal relationship between them.

Question 2

English common law has developed a number of specific torts. What are they?

Answer 2

1. Nuisance
2. Trespass
3. defamation
4. Conversion

Question 3

In the shipping and insurance industries the most important tort is?

Answer 3

• negligence

Question 4

The tort of negligence has 4 requirements. What are they?

Answer 4

1. A duty of care between the parties to which the law attaches liability to carelessness.
2. A breach of the duty of care by the tortfeasor in that their conduct failed to measure up to the standard set by the law (and from which damage has resulted).
3. Damage resulting from the breach of duty.
4. A casual connection between the tortfeasor’s careless conduct and the damage.

Question 5

The particular kind of damage to the particular claimant must not be so unforeseeable as to be so

Answer 5

Remote that it would be unjust to hold the tortfeasor responsible for it.

Question 6

The duty of care 3-stage test - when does it arise?

Answer 6

1. There should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity or neighbourhood
2. The damage suffered should be foreseeable
3. The situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.

• this an important safeguard against the possibility of encouraging too much litigation.

Question 7

An example of where a shipowner would clearly owe a duty of care

Answer 7

To those who come on board the ship as visitors, including:
Stowaways
Stevedores who use the ship’s equipment in the course of their work.

• all other ships navigating their ship with particular reference to the Collision Regulations established by the COnvention on the International Regulations for Preventing Collisions at Sea (COLREGs)

Question 8

What is strict liability?

Answer 8

Torts where liability does not depend on a breach of duty of care before the tortfeasor can be held liable.

Liability follows from the action taken regardless of whether the tortfeasor has acted without due care.

In such circumstances, the tortfeasor is said to be strictly liable.

Question 9

Examples of strict liability torts?

CT
ND

Answer 9

Conversion - the unjustified taking of someone else’s goods (equivalent to theft in criminal law)

Trespass - an unjustified intrusion into someone else’s property

Nuisance- the unjustified interference with someone else’s property or amenities

Defamation - the unjustified damaging of someone’s reputation

Question 10

Damages

• the innocent party is entitled to compensation. This usually takes the form of monetary damages
• what is the difference between a breach of contract and tort in terms of damages?

Answer 10

Breach of contract: the objective is to put the innocent party back in the position in which it expected to be, had the contract been performed in accordance with its terms —> Expectation damages.

Tort: damages are designed to put the innocent party back in the state they were in before the tort was committed —> compensatory damages.

Question 11

What are punitive damages / exemplary damages?

Answer 11

• not designed to recompense the victim but to punish the wrongdoer in cases where their conduct is seen as flagrant or outrageous

Most notable in the US system - may be awarded in addition to compensatory damages.

Question 12

Give an example of a case where punitive damages were awarded.

Answer 12

• oil spill caused by the grounding of the Exxon Valdez in Alaska Sound - 1989.
• reduced to US$507.5m on the principle that, in maritime law, a 1:1 ratio of punitive damages to compensatory damages was the appropriate maximum.

(Initially US$ 5bn).

Question 13

Do English court award punitive damages?

Answer 13

No they do not but they will, in certain cases, award what are known as ‘aggravated damages.’

Aggravated damages may only be awarded in very limited circumstances.
Tend to be claimed most frequently in libel cases and so are unlikely to be relevant to maritime claims under English law.

Libel - form of defamation - defamatory statement made in writing