Unit 1

Question 1

What does tort mean? And what does it involve?

Answer 1

The word “tort” essentially means “wrong”. A tort involves the infringement of legal rights or breach of legal duty and it gives rise to claims in civil courts.

Question 2

What is a tortfeasor?

Answer 2

A person who committed a tort

Question 3

Why is tort a civil wrong?

Answer 3

It governs the relationship between individuals

Question 4

What can deter someone from taking a tort case to court?

Answer 4

• unless the defendant is insured, there is no compensation.
• If a defendant loses case their commercial or professional reputation could be tarnished.
• it might also deter an employer from continuing poor practice

Question 5

What happens if the claimants injury is not covered by current tort law?

Answer 5

The claimant may not be able to take it further or they can try to convince the court to extend the law of tort to cover their claim.

Question 6

Where a defendant is a public body (usually have protection under law), what can provide an alternative in tort law?

Answer 6

In s6 of the 1998 Human Rights Act of the ECHR, it states it is unlawful for a public authority to act in a way which is incompatible with a convention right.

Question 7

What does the Limitation Act of 1980 state?

Answer 7

The claim for tort period is generally 6 years from when the cause of action arises. For defamation it is one year and personal injury is 3 years.

Question 8

What is vicarious liability?

Answer 8

When an employee commits a tort the employer can be sued aswell.

Question 9

Why is tort law commonly thought of as fluid?

Answer 9

Old torts die out as new ones emerge. It adapts to address new historical, social and economic contexts.

Question 10

There is a description of tort law as “a collection of civil wrongs …

Answer 10

… for which the law provides a remedy”

Question 11

What is corrective justice in this context?

Answer 11

A defendant is making good the loss they have wrongfully and factually caused.

Question 12

What is corrective justice undercut by?

Answer 12

The reality of insurance. It has a rhetoric of individual responsibility but forces people to contract into the collective responsibility of the welfare state.

Question 13

Arguments against tort law:

Answer 13

• Losses will often be borne from insurance or not made good at all
• its effectiveness is limited by its allegiance to fault over need.
• there is a culture of compensation developing. People do not take personal responsibility.

Question 14

How does the HRA impact the law of tort?

Answer 14

It has horizontal effects on tort. It imposes duties on public bodies particularly in the developing field of privacy.

Question 15

In order to make a negligence claim in court, which three criteria must you fulfill?

Answer 15

Duty of care, breach of duty and a cause of damage

Question 16

What is the first step in determined whether there was a duty of care?

Answer 16

Is it an established duty (like driver and pedestrian) or a novel duty (a new one)

Question 17

Why do most leading cases on duty of care reach the court of appeal or House of Lords?

Answer 17

The defence argues that the claimants case should be struck out since there’s no duty of care. The doctrine of precedent means that these cases have an immediate legal impact on relationships between groups of people.

Question 18

What came about as a Result of Donoughue vs Stevenson?

Answer 18

A landmark case establishing principles upon which the modern tort of negligence is based. Added manufacturer consumer relationship to list. Established the neighbour principle, which is used to determine whether or not the defendant owes a duty in a novel situation.

Question 19

What are the key concepts of the Neighbour Principle?

Answer 19

• the foreseeability of harm to the claimant
• the degree of proximity between the claimant and defendant

Question 20

What case developed the neighbour principle further?

Answer 20

Camaro Industries PLC v Dickman

Question 21

Three past test (Caparo):

Answer 21

• must be reasonable foresight of harm to claimant
• there must be sufficient proximity of relationship
• it is fair, just and reasonable to impose a duty.

Question 22

What to consider in step 2 Breach of duty:

Answer 22

Has the defendants conduct fallen below the standard of care expected of the reasonable person in the defendants position

Is their behaviour less careful than that of a hypothetical reasonable person in the same situation

Question 23

What special considerations must you take into account when using the reasonable person test?

Answer 23

If the person is a skilled, disabled or child defendant

Question 24

After undertaking the reasonable person test, what should you consider

Answer 24

The magnitude of risk:
- likelihood of injury occurring
- likelihood of serious injury

Question 25

What is res ipsa loquitor?

Answer 25

“The thing speaks for itself” evidence is not required to show negligence. The defender must show that the accident was not caused by their negligence for that they showed reasonable care.

Question 26

The two branches used to analyse whether a defendant showed care:

Answer 26

• the magnitude of risk factors
• the precautions the defendant ought reasonably to have taken in response to risk (cost and practibility, purpose, common practice)

Question 27

What is the floodgate argument?

Answer 27

If one case succeeds, it will open flood gates for many similar.

Question 28

Why is insurance not necessarily a good thing to claim through?

Answer 28

It can result in increased premiums for the rest of society.

Question 29

Omission- what is the general rule?

Answer 29

You do not owe a duty to the world for your omissions. You do not have to save a Person from drowning if you do not know them. However you did have a duty as a rescuer to not positively act in a way that makes a situation worse.

Question 30

What is the general duty of a public authority?

Answer 30

To avoid causing damage, not to prevent future damage form occurring which arises from causes for which the authority was not originally responsible.