Tort Law

Question 1

What is a tort?

Answer 1

A private wrong/civil dispute between individuals, in which harm has been inflicted through a breach of duty of care or negligence. People accused of committing a tort are found liable- not guilty.

Question 2

Where are torts generally settled?

Answer 2

In a court of law- but the State doesn’t need to be involved.

Question 3

What are the two types of defamation?

Answer 3

Libel (written), and slander (verbal)

Question 4

Who has the burden of proof in tort law?

Answer 4

The claimant. They must file the case and prove that the defendant wrongfully caused damage to them.

Question 5

What types of principles of criminalisation are there?

Answer 5

Justifying principles (prerequisites for criminalisation): Harm and wrong
Limiting principles (influence against criminalisation):
Proportionality
Subsidiarity (ultima ratio)
Efficacy

Question 6

What is the principle of individual autonomy?

Answer 6

Every person has the right to self-determination/to govern themselves freely without interference from the Statee

Question 7

What is the harm principle?

Answer 7

The only reason why an individual’s autonomy should be interfered with is to prevent to other individuals.

Question 8

What is the welfare principle?

Answer 8

“Individual autonomy needs to be balanced against the State’s duty to create and maintain the social conditions that allows the exercise and flourishing of autonomy” As members of wider societies, we need to protect things we share, e.g. environment, public safety etc.

Question 9

What is the principle of wrong?

Answer 9

A justifying principle. Conduct must be wrongful to justify punishment.

Question 10

What is moral wrongfulness?

Answer 10

Helps to assess negligence or intentional harm. A wrongful act that injures another can lead to liability if it violates social standards of reasonable behaviour or duty of care. Moral wrongfulness warrants moral condemnation.

Question 11

What is a limiting principle against criminalisation?

Answer 11

Refers to legal or philosophical guidelines that prevent the over-extension of criminal law. Aims to restrict what behaviours can be justifiably criminalised, ensuring that not all morally questionable or undesirable actions are treated as crimes.

Question 12

What is proportionality in tort?

Answer 12

Focuses on the gravity of the conduct itself- are the harm and wrong severe enough to warrant criminalisation?

Question 13

What types of proportionality are there in tort?

Answer 13

Prospective proportionality: Would it be disproportionate to criminalise a conduct?
Retrospective proportionality: Is the adopted penalty proportionate to the gravity of the crime?

Question 14

What is subsidiarity?

Answer 14

Also known as ultima ratio- criminal law must remain the last resort. Is there another appropriate (non) legal mechanism which is less intrusive and stigmatising than criminal law, that we can use to control the unwanted conduct?

Question 15

What is efficacy?

Answer 15

Would criminalisation actually contribute to the general prevention of a conduct?

Question 16

What is duty of care?

Answer 16

Was there a reasonable expectation that the defendant should have acted more carefully?

Question 17

What is an easy tort?

Answer 17

Criminal behaviour that is obviously a breach of the law (whether there was intent or not)

Question 18

What are some judicial processes of establishing duty of care? (i.e. how do judges decide if it’s a tort?)

Answer 18

1. Asking whether there was a reasonable expectation that the accused should have acted differently
2. Abstract norms in case law- they can check previous court cases
3. Indirect effect of statutory norms- i.e. check the codified law itself. Whether something is specifically described as a tort (or a crime) or not, it can be helpful
4. Soft law- “informal” laws laid down by experts within their fields, e.g. guidelines, rule books, training given to instructors or authority figures
5. Judgement of experts- the opinion of another party that has looked at the case and given their opinion
6. Circumstances of the case- what does the case itself tell you?

Question 19

What is strict/no-fault liability?

Answer 19

The accused is held liable for damages or losses, without having to prove intent or fault. They are simply liable because of the nature of the event or their role in it.

Question 20

What is fault liability?

Answer 20

This requires that the plaintiff prove that the accused acted with fault, either through negligence or intentional misconduct. This means showing that the accused failed to take reasonable care or acted with wrongful intent, leading to harm.

Question 21

What must be proven for something to constitute a tort?

Answer 21

Either:
Negligence (failed to meet a standard of care); or
Intention (they acted to cause a harm)

Question 22

What are some objective remedies of tort?

Answer 22

• Compensation
• Punishment/sanctions of the accused
• Deterrence
• Judicial recognition of a wrong
• Awards for non-material harm
• Apologies
• Declaration of rights
• Injunction

Question 23

What is a material damage?

Answer 23

Compensation for the physical thing that was damaged

Question 24

What is non-material damage?

Answer 24

Compensation for things that can’t be quantified, e.g. emotional trauma, pain and suffering

Question 25

What are some pros and cons of material damages?

Answer 25

Pros:
- Compensation can aid in the return to financial normality
- Quick(er) and easy(er), e.g. through a lump sum
Cons:
- Other reparations may be neglected in favour of money
- Can be less sever implications on the plaintiff (could be good or bad)

Question 26

What are some pros and cons of non-pecuniary damages?

Answer 26

Pros:
- Acknowledges needs other than money
- Acknowledges that the wrong occurred
Cons:
- Impossible to objectively evaluate how to repair the damage
- Loss is not measurable in a market

Question 27

What is an injunction?

Answer 27

Something which stops or prevents a continuous action that somehow illegally harms the claimant. “Cease of interference”.

Question 28

What is the difference between good and bad faith?

Answer 28

Good faith: When there is no intention of committing a wrongdoing
Bad faith: When there is an intention of committing a wrongdoing

Question 29

What is lump-sum compensation?

Answer 29

A predictive calculation of the losses the victim will have sustained until their death. It is imperfect, since it is not possible to predict the exact losses- but it is paid one time.

Question 30

What is the IRAC method?

Answer 30

I - Issue. What are the facts of the case and the problem presented?
R - Rule. What legal rules are applicable?
A - Application. How can the rules be applied to the case facts?
C- Conclusion. What (do you think) is the appropriate outcome?

Question 31

What is procedural justice?

Answer 31

The idea that people’s perceptions of justice are strongly influenced by the legal process-based factors and the way decisions are made. The outcomes of legal proceedings can be much less decisive than people’s perceptions of it.

Question 32

What are the aims of tort law?

Answer 32

• Compensation
• Punishment
• Judicial acknowledgement of the wrong
• Deterrence
• Protection against infringement of rights

Question 33

What is the “but-for” test?

Answer 33

Also known as conditio sine qua non, or the physical causation test, it is a discussion about the facts and ascertains whether there is a causal link between the (in)actions of the accused and the occurrence of the tort. It is a non-normative process (i.e. an analysis based on fact alone, without opinion or judgement)

Question 34

What is remoteness in tort?

Answer 34

This is generally the second step in the conditio sine qua non test. Once causation has been established, remoteness must be ascertained. This step is normative (based on “human” judgments and opinions), and it judges whether the consequences claimed in a tort are reasonably foreseeable as consequences. You cannot hold someone responsible for every consequence of a tort.

Question 35

What is physical causation?

Answer 35

Would the damage have occurred without the occurrence of the tort? Physical causation is the defined link between the (in)actions of the accused and the wrong experienced by the claimant.

Question 36

What is foreseeability?

Answer 36

The ability to predict that a certain act or omission could likely cause harm or injury to another person. For an act to be considered a tort, the harm must be a foreseeable consequence of the defendant’s (mis)conduct. more foreseeable a consequence of a tort is, the more reasonable it is for the claim to be successful.