Chapter 2 Flashcards
(15 cards)
What is the definition of a tort?
Tortious liability arises from a breach of a duty primarily fixed by the law; such duty is towards people generally and breach is redressable by an action for unliquidated damages
What is the aim of tort law?
To compensate individuals who suffer harm through the actions of others. A tort is a civil wrong that causes a claimant to suffer loss or harm
What is the difference between tort and criminal law?
Criminal is to punish offenders who are found guilty of a wrong which is harmful to the interests of society as a whole.
In tort, the victim will bring the action. However in criminal, it is the Crown
Tort is civil, crime is criminal
What is the definition of ‘Unliquidated Damages’?
The amount of damages (financial compensation) is not fixed in advance and will be decided by the court
Is injury or damage required in tort claims?
In most cases, an action in tort will succeed only where claimant has suffered some form of injury, damage or loss. However, some cases may be actuonsble without this, only needing to prove the tort has been committed (easier to prove). Eg you can sue a person for trespass for land without proving any damage was incurred
When could negligence be required in a tort claim?
In some form of private nuisance cases and, even where no negligence is required, the defendant’s conduct must at least be unreasonable.
What are strict liabilities?
Where a person may be held liable even though their actions are neither intentional nor negligent. Aka, ‘no-fault’ liability.
Liability is normally strict and it will usually be no defence to a breach of contract for the defendant to plead that all reasonable care was taken and there was no negligence on their part.
What case law provided an example of strict liability?
Rylands v. Fletcher (1868)
An example of when liability was proven even where there is no fault or negligence of the defendant.
The defendant employed independent contractors to construct a reservoir on his land to supply water to his mill. During construction, contractors came across disused mine shafts filled with earth which unknown to the defendant and contractors, connected to the claimant’s mine. After the work was complete and reservoir filled, one shaft gave way and water hurst through the old work and flooded claimant’s colliery. It was found that the defendant had not been negligent, however was held liable and judgement was confirmed by House of Lords on appeal
Are malice or motive relevant in the law of torts?
Not usually. The law of torts does not concern itself with why the defendant behaved a certain way.
Malice in the legal sense meaning not just personal spite or ill-will, but any improper motive
What are the two cases where malice is relevant in tort?
- Malice is an essential ingredient in one of two minor torts, eg, malicious prosecution and malicious falsehood
- In the tort of defamation certain defences are not available if there is malice;
- In the tort of nuisance some actions which are normally reasonable (and lawful) will be held unreasonable (therefore unlawful) if motivated by malice
What are the three characteristics of trespass?
- the act of the defendant must be direct
- the act of the defendant must be intentional
- the tort is actionable per se (claimant does not have to prove they have suffered loss or damage in order to succeed)
What are the three main forms of trespass?
- Trespass to the person
- Trespass to goods
- Trespass to land
What are the 3 main forms of trespass to the person?
- Assault
- Battery
- False imprisonment
Describe the difference between assault and battery?
Assault - any act which causes the claimant to fear and attach on their person, eg, pointing a loaded gun
Battery - the hostile application by the defendant of physical force to the claimant. Shooting someone or hitting someone with a stick is battery
A real threat of violence which is not carried out is still an assault, but not a battery. And a sudden attack from behind, where a claimant is never threatened or put in fear of violence is a battery, but not an assault
Define trespass to goods
Where the defendant directly and intentionally interferes with goods which are in the possession of another
