Tort law - 4.1 Rules and theory

Question 1

what is the aim of tort law?

Answer 1

• not to pinkish wrongdoing, but to protect: stop harmful conduct, provide damages as compensation, to those who suffer loss/consequences of actions or omissions of other.

Question 2

what is the definition of claimant?

Answer 2

• A person who brings a claim, this person feels they have been wronged and claiming for damages by redress.

Question 3

what is the definition of Defendant?

Answer 3

• A person who is the alleged wrongdoer. this person is attempting to defend themselves from the claim against them.

Question 4

what is the burden of proof?

Answer 4

• “ on the balance of probabilities”.
• C has to prove D was at fault for the incident and responsible for the damage.

Question 5

what is fault?

Answer 5

• There was some wrongdoing by D. it is a requirement in negligence and occupiers liability.
• C does not need to show how and why the incident happened , but it did. and to link damage suffered.

Question 6

What is remedies?

Answer 6

• to return the claimant to their original state.
• Pecuniary Loss: A loss that can be easily calculated in terms of money. Eg the cost of hiring a car when the claimants is being repaired.
• Non- Pecuniary Loss: Loss that is not wholly money based such as pain and suffering due to an accident or a change in lifestyle such as not being able to play a sport.
• Special Damages: An amount which can be calculated up to the loss of the trial (pecuniary loss).
• General Damages: Losses that are expected after the trial date (non pecuniary) such as pain and suffering, loss of earnings, These amounts are speculative and needs evidence.
• Lump sum: This is an amount of money given to a claimant all in one. This is a ‘once-only’ award.
• Structured settlements : the money owed is given over a
  period a time and can be reassessed at certain intervals.
  The Damages Act 1996 introduced structured
  settlements. payments can be set for life or a given period, e.g 10 years.

Question 7

what is liable?

Answer 7

• Responsible (guilty).

Question 8

what is Duty of care?

Answer 8

• Responsibility to ensure safety/freedom from harm.

Question 9

what is the Eggshell skull rule?

Answer 9

• D must take his/her victim as he/she find them.
• applies to property damage.
• Due to an existing condition some claimants suffer more serious harm from breach of duty by the D than a reasonable person might foresee ( eggshell
  skull rule still used)

Question 10

What is the factual causation?

Answer 10

• “But for” test:
• ‘ but for the defendant’s act/omission the injury or damage wouldn’t have occurred ’

Question 11

what is novus actus interveniens in factual causation.

Answer 11

• An act has the effect of breaking the link between the D’s conduct and the damage/injury caused – there is an
  intervening act.

Question 12

what is remoteness of damages?

Answer 12

• the defendant should/should not be liable for the damage caused The damage must not be too remote (unlikely)

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Question 13

what is the Reasonable foreseeability test?

Answer 13

• Reasonable Foreseeability test (used to determine if D is liable for the damage caused’)
• ‘if a reasonable person, present at the time of incident, would have been able to predict the consequences of the breach, will the D be liable for the damage caused’
• Injury or damage must be reasonably foreseeable for the D to be liable.

Question 14

what is Re Ipas Ioqutur (additional rule) in causation?

Answer 14

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- means things speak for themselves.

• general rule for negligence is claimant must prove all 3 elements of negligence:

1) D was in control of the situation which caused the injury or damage.

2) Accident wouldn’t have happened unless someone was negligent.

3) There is no other explanation for injury/damage.

• if all 3 satisfied : burden of proof is reversed , D must prove they weren’t negligent.