Theory of Tort Law Flashcards
(12 cards)
civil law
Civil law is concerned with settling disputes between:
- individuals
- individuals and a business
- business and another business.
tort law
There are many different areas of civil law including tort law.
‘Tort’ comes from French word for wrong - a tort is a civil wrong.
purpose of tort law
provide remedies when one person has been affected by another’s acts or omissions and the law considers that a remedy should be available.
- return C to the state if the tort hadn’t occurred
Remedies include damages (financial compensation) and injunctions.
courts/standard/burden of proof
person claiming for the loss: CLAIMANT
they are claiming against the DEFENDANT
Claims made to the County Court or High Court.
Burden of proof = on the claimant
Standard of proof = balance of probabilities (more likely than not)
- 51% probability they are liable
- lower than in criminal cases as D not at risk of losing liberty
elements of tort law theory
public policy
objective standard of care
injunctions
nature/purpose of vicarious liability
public policy
there are public policy (interests of the community/society) factors/considerations for the courts to consider when deciding upon liability
- duty of care
- psychiatric injury
- economic loss
public policy
- duty of care
In most of the negligence claims the question of whether a duty of care exists will not be an issue.
3-part Caparo test will only be needed in new/novel situations.
But new situations can arise / be added where necessary (Watson v BBB - referee)
Caparo specifically considers public policy in the 3rd part of the test “fair, just & reasonable”.
The courts do not want the floodgates of litigation to open (Hill v CC of WY - parents of yorkshire ripper victim v police)
This was criticised as it was difficult to claim against public authorities, but: Capital & Countries plc v Hampshire CC - liability if through own actions create a new danger or substantially increase risk of an existing danger
public policy
- psychiatric injury
There is potentially an enormous number of claimants for psychiatric injury, eg:
- actively involved in the event as a rescuer
- emotionally involved because friends/relatives are PVs
- passive bystander
- physically present, but at sufficient distance to be safe
- arrive at the scene of the accident in time to witness its aftermath
- witness it on television
- be informed of it by some other means
so, the extent of liability needs to be managed as a matter of policy.
Criteria in Alcock for SV are deliberately restrictive:
1. close tie of love/affection to PV
2. physical proximity in time/space (event/immediate aftermath)
3. percieved with own unaided senses
4. reasonable person would suffer in the same way
public policy
- economic loss
Financial loss resulting from negligently inflicted injury to the person/property is ordinarily recoverable.
However, there are situations where financial loss is caused without there being any injury or damage e.g. negligent advice on investment
This loss of money is known as pure economic loss.
There has never been liability for pure economic loss caused by negligent acts.
Spartan Steel confirmed as a matter of policy such a loss should not be recoverable:
- would be compensated through contract law
- would open the floodgates of litigation to similar claims
But, Hedley Byrne v Heller liability can arise due to negligent misstatement if there is a special relationship between the parties based on the skill/judgement of D and the reliance placed upon it
objective standard of care
C has to prove D breached the duty of care.
The standard of care required is that of the hypothetical reasonable man.
This standard is objective.
If the standard is set too high, it could inhibit desirable activities taking place e.g. a summer fete.
But, in a case where a professional has voluntarily assumed a responsibility to a client, it is fair to hold that professional to the standard of care that they would be expected to live up to (Bolam).
It would be unfair to hold an expert to a higher standard than an inexpert (Nettleship v Weston)
Risk of harm and precautions can also lead to unfairness (Bolton v Stone)
Occupiers liability: occupiers dont have to make their premises completely safe, just reasonably’ s2(2) Occupiers Liability Act 1957
injunctions
injunction = court order that prohibits people from doing specified things or require them to do specified things.
When considering interim injunctions (temporary), the courts have to balance conflicting interests - “balance of convenience” test
- balance B’s need to be protected against any harm that she might suffer if A were allowed to do x against A’s need to be protected against any harm that he might suffer as a result of being prevented from doing x.
- Miller v Jackson - favoured public interest
A final injunction will be made against someone who is proved to be a tortfeasor
nature/ purpose of vicarious liability
General rule in tort = liability attaches to the person actually responsible, or someone who expressly authorises or ratifies a tort.
But, circumstances where a person is responsible for the torts of another in the absence of such authorisation - vicarious liability e.g. an employer is responsible for the torts of his employees.
Strict liability; no MR needed (Callow v Tillstone)
This is on the basis that:
• an employee’s work generally benefits the employer
• is done within the general supervision of the employer, so the employer should take the consequences
• employees more likely to have resources/insurance to meet the claim
• unscrupulous employers can’t escape liability for forcing employees to take risks
• improve safety standards (encourage employers to take responsibility/ excess due diligence)
BUT, must still be in the course/scope of employment
- Close connection test (Lister)
