Tort basics

Question 1

Tort - a civil wrong

Answer 1

Created through common law and acts of parliament
Private law
Allows a person to claim compensation when they have been injured or their property has been damaged
Claimants and defendants
If claim successful then the court will award remedy

Question 2

Establishing liabilty
Burden of proof

Answer 2

On the claimant
The claimant has to prove that the defendant is liable

Question 3

Establishing liabilty
Standard of proof

Answer 3

The claimant has to prove that the d is liable on the ‘balance of probabilities’ meaning that it is more likely than not that the claimant is telling the truth

Question 4

Establishing liabilty
Funding

Answer 4

Loser pays the winners legal costs in addition to their own costs

Question 5

Fault

Answer 5

All tort based on negligence - where the claimant has to prove that the D was at fault
Fault means that there is wrongdoing by the D, and he/she is to blame for the loss or injury suffered by the C
Fault has to be proven for damages to be paid as per Cambridge water v Easter counties leather 1994

Question 6

Fault
Negligence

Answer 6

Where you have a duty of care, the duty is breached and this causes damage

Question 7

Fault
Occupiers liability

Answer 7

The occupiers owe a visitor a duty of care when they come into their property, if the duty is breached and damaged then there is liability

Question 8

Fault
Economic loss & negligent misstatement

Answer 8

Where someone gives negligent advice which results in a loss of money to the claimant

Question 9

Fault
Psychiatric injury

Answer 9

C suffered mental injury which is serve enough to cause loss

Question 10

Non fault - civil strict liability

Answer 10

Some torts don’t require fault to be proven - it is enough that the action happened and that there is a causal link to the damage suffered
- nuisance
- Rylands v fletcher
-vicarious liability

Question 11

Theory of tort - policy decisions

Answer 11

Duty of care
Most law in this area is common law
Judges are careful when setting precedents slit to “open the floodgates” for lots of new claims
Careful to balance individual justice alongside setting a fair and just precedent policy decision

Question 12

Theory of tort - policy decisions
Judges take into account the following factors:

Answer 12

Loss allocation
Floodgates
Practical ways of imposing liability

Question 13

Theory of tort - policy decisions
Judges take into account the following factors:
Loss allocation

Answer 13

Who can afford to bear the loss?
Is there any insurance?
Is party funded by taxpayers money?

Question 14

Theory of tort - policy decisions
Judges take into account the following factors:
Floodgates

Answer 14

Will imposing liability create a high volume of new claims?
What would be the impact on the courts, insurers and public funded bodies?

Question 15

Theory of tort - policy decisions
Judges take into account the following factors:
Practical ways of imposing liability

Answer 15

Will standards be raised as a consequence, r will essential funds be diverted away to cover legal costs?

Question 16

Policy decisions for pure economic loss

Answer 16

Judges are careful to limit claims otherwise courts would be overwhelmed
US judge Benjamin N cardoza- a fear of an indeterminate number of claims by an indeterminate number of parties indeterminate amounts of money for an indeterminate amount of time
Hedley Byrne v heller 1963

Question 17

Policy decisions for psychiatric injury

Answer 17

Judges are careful to limit claims because of the fear of:
Opening the floodgates
Potential for fraudulent claims by people exaggerating
Problems of proof and diagnosis, including the cost of expert opinions

McLoughlin v o’brian 1983