Tort Law - Introduction to Tort Flashcards Preview

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Flashcards in Tort Law - Introduction to Tort Deck (68):
1

Who said that 'tortious liability arises from the breach of a duty primarily fixed by law... towards persons generally'?

Winfield

2

What did Winfield say about the origins of tortious liability?

'arises from the breach of a duty primarily fixed by law... towards persons generally'

3

How does tort aim to remedy a situation?

Through financial compensation

4

What does tort form a part of in the law?

Part of the law of obligations

5

What is the primary difference between tort and contract?

Contract usually involves two individuals, not the law, creating their own duties

6

What is the primary difference between tort and unjust enrichment?

UE, unlike tort, does not focus on WRONGS but returning gains earned

7

Primary difference between tort and property

Property may give C certain tort remedies, but tort is not concerned with creation/transfer of interest in land

8

Tort and crime primary difference

Structural difference; state, not individual, brings proceedings in criminal law, with the aim to punish

9

Ashley v Chief constable Of Sussex Police general

Drug dealer, dead, SD

10

What did the court require in Ashley v Chief Constable?

Genuine, honest AND reasonable belief for self-defence

11

Why was there a different test for SD in tort than criminal law?

Two systems have different aims

12

What four primary aims of tort did G Williams give?

Appeasement, justice, deterrence and compensation

13

Who gave four primary aims of tort?

G Williams

14

Who looks at tort law in terms of the time element?

Winfield

15

How does Winfield view tort law?

short term: disparate collection of specific wrongs. long term: patterns emerge, torts converge/diverge

16

What are the 3 primary external influences on tort law?

Compensation culture, insurance and HRA 1998

17

Who referred to 'compensation culture' as being a pejorative term?

Lunney and Oliphant

18

Who defined tort as being concerned 'with the allocation of responsibility for losses which are bound to occur in our society'?

Winfield and Jolowicz

19

Who considered that tort is concerned with losses that are 'bound to occur in our society'?

Winfield and Jolowicz

20

what did Winfield and Jolowicz say tort is concerned with?

Allocation of responsibility for losses which are bound to occur in our society

21

What country has a compensation system and what is it called?

New Zealand Accident Compensation System

22

How does the NZ Accident Compensation System work?

Distributes losses and gives compensation in a much more economically efficient way

23

What value is there in an individual litigation system, like in England?

Sense of retribution/revenge; enhances sense of individual responsibility

24

What is another way Williams explains appeasement as a possible base of action for damages in tort?

'Safety valve function'

25

How does Williams explain justice as a possible base of action for damages in tort?

Compensation has a social purpose independent of deterrence; most people accept paying for harm caused, but will not accept punishment

26

How does Williams explain deterrence as a possible base of action for damages in tort?

Underlying object of civil and criminal law are the same (Bentham)

27

Who first expounded the idea that deterrence may be the base of action for damages in tort?

Bentham

28

Why does Williams not support Bentham's analysis of the underlying base of a tort action?

Offends utilitarian philosophy off of which the analysis is drawn; usually requires greater punishment than necessary

29

How does Williams explain compensation as a possible base of action for damages in tort?

Enterprise theory - risk shouldered by undertaker

30

What does Williams conclude about the bases of actions for damages in tort?

'Where possible, the law seems to like to ride two or three horses at once'

31

Who believe that 'where possible, the law seems to like to ride two or three horses at once'?

Williams

32

Who highlighted the huge impact of insurance on the law of damages?

Lewis

33

Who highlighted that it would be unlikely C would be restored to pre-accident position in a serious injury case without insurance?

Lewis

34

what did Lewis say about the number of claims decided by trial judges, to show the majority are covered by insurance?

1%

35

Davie v New Merton Board judgment

No disclosure of insurance position of parties in case influences the court in deciding the case

36

Nettleship v Weston judgment

Lord Denning; open approval of judges demanding a higher standard from parties known to be insured

37

What judge in what case demanded a higher standard from parties known to be insured?

Nettleship v Weston, per Lord Denning

38

What case enforced that there should be no disclosure of insurance position of parties in case it influences the court decision?

Davies v New Merton Board

39

Tomlinson v Congleton Borough Council

Court considered deterrent effect of tort liability under a compensation culture could lead to 'grey and dull safety regime on everyone'

40

Who considered that the deterrent effect of tort liability under a compensation culture could lead to a 'grey and dull safety regime on everyone', and in what case?

Lord Scott; Tomlinson v Congleton BC

41

Gorringe v Calderdale

Lord Steyn expressed more measured concern of a compensation culture than Scott in Tomlinson

42

In what case did Steyn express more measured concern of a compensation culture than Scott in Tomlinson?

Gorringe v Calderdale

43

McDonald's Coffee Case shows what?

Media sensationalise any 'compensation culture'

44

What shows the media sensationalising compensation culture?

McDonald's Coffee Case; end result of compensation nowhere near $2.9 mil reported

45

The Compensation Act 2006 tried to do what?

Address public concern about compensation culture

46

What did the Compensation Act 2006 do?

Restated common law rules that apology does not equal liability, and deterrent effect of potential liability should be considered

47

What does BRTF data show?

Overall tort costs in UK are comparably lower to other developed countries

48

What data showed overall tort costs in UK are comparably lower to other developed countries

BRTF

49

What Act tried to address public concern about compensation culture?

Compensation Act 2006

50

What two radical reform options of tort law do L&O envisage?

Abolition of tortious liability for personal injuries and introducing a 'no fault' compensation scheme alongside or instead of tort

51

Thalidomide cases needed claimants to prove what?

Negligence

52

What case did Teff and Munro declare to show one of many 'fundamental shortcomings of the tort system' and why?

Thalidomide cases - needed to prove negligence, instead of no fault claim

53

Pearson Commission on a 'no fault' compensation scheme

No fault up to £2500 in road accidents

54

What is the main issue with the suggestion of the Pearson Commission?

Seems to prefer minor injuries to serious injuries

55

What Commission introduced the NZ Accident Compensation Scheme?

Woodhouse Commission

56

What academic in particular advocated abolishing tort system for compensation of personal injuries, leaving it to first-party insurance?

Atiyah

57

What did Atiyah advocate for in tort system?

Abolish it as compensation for personal injuries, leaving it to first-party insurance.

58

Who said that 'if the poor were not so poor, we could decently ask them to provide their own accident insurance'?

Kalven

59

What did Kalven say about Atiyah's idea of abolishing compensation through tort and leaving it to 1st-party insurance?'

'If the poor were not so poor, we could decently ask them to prove their own accident insurance'

60

What one qualification did Atiyah give in his argument for abolishing tort system of compensation for personal injuries?

Insurance should be compulsory for road accidents or too many people would go without

61

What issue do L&O take with Atiyah's qualification on abolishing tort system of compensation?

L&O believe it would be true of many other areas too that people would not seek cover through insurance

62

What did the Institute of Actuaries find in 2002?

Tort claims make up 1% of GDP

63

How did Williams interpret the figure by the Institute of Actuaries in 2002 that tort claims make up 1% of GDP?

'Very large sum of money'

64

Who saw the figure by the Institute of Actuaries as relatively small?

L&O

65

Who saw the figure by the Institute of Actuaries as a 'very large sum of money'?

Williams

66

What did the BRTF show about Denmark in particular?

Only Denmark spent less than UK when 10 industrialised nation's tort claims were compared

67

Who believes compensation culture is an 'urban myth'?

Williams

68

what does Williams believe has been the result of a compensation culture?

Public sector and businesses are on the defensive, as it has encouraged a 'have a go culture'

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