Flashcards in Tort Law - Introduction to Tort Deck (68):
Who said that 'tortious liability arises from the breach of a duty primarily fixed by law... towards persons generally'?
What did Winfield say about the origins of tortious liability?
'arises from the breach of a duty primarily fixed by law... towards persons generally'
How does tort aim to remedy a situation?
Through financial compensation
What does tort form a part of in the law?
Part of the law of obligations
What is the primary difference between tort and contract?
Contract usually involves two individuals, not the law, creating their own duties
What is the primary difference between tort and unjust enrichment?
UE, unlike tort, does not focus on WRONGS but returning gains earned
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
Tort and crime primary difference
Structural difference; state, not individual, brings proceedings in criminal law, with the aim to punish
Ashley v Chief constable Of Sussex Police general
Drug dealer, dead, SD
What did the court require in Ashley v Chief Constable?
Genuine, honest AND reasonable belief for self-defence
Why was there a different test for SD in tort than criminal law?
Two systems have different aims
What four primary aims of tort did G Williams give?
Appeasement, justice, deterrence and compensation
Who gave four primary aims of tort?
Who looks at tort law in terms of the time element?
How does Winfield view tort law?
short term: disparate collection of specific wrongs. long term: patterns emerge, torts converge/diverge
What are the 3 primary external influences on tort law?
Compensation culture, insurance and HRA 1998
Who referred to 'compensation culture' as being a pejorative term?
Lunney and Oliphant
Who defined tort as being concerned 'with the allocation of responsibility for losses which are bound to occur in our society'?
Winfield and Jolowicz
Who considered that tort is concerned with losses that are 'bound to occur in our society'?
Winfield and Jolowicz
what did Winfield and Jolowicz say tort is concerned with?
Allocation of responsibility for losses which are bound to occur in our society
What country has a compensation system and what is it called?
New Zealand Accident Compensation System
How does the NZ Accident Compensation System work?
Distributes losses and gives compensation in a much more economically efficient way
What value is there in an individual litigation system, like in England?
Sense of retribution/revenge; enhances sense of individual responsibility
What is another way Williams explains appeasement as a possible base of action for damages in tort?
'Safety valve function'
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
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)
Who first expounded the idea that deterrence may be the base of action for damages in tort?
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
How does Williams explain compensation as a possible base of action for damages in tort?
Enterprise theory - risk shouldered by undertaker
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'
Who believe that 'where possible, the law seems to like to ride two or three horses at once'?
Who highlighted the huge impact of insurance on the law of damages?
Who highlighted that it would be unlikely C would be restored to pre-accident position in a serious injury case without insurance?
what did Lewis say about the number of claims decided by trial judges, to show the majority are covered by insurance?
Davie v New Merton Board judgment
No disclosure of insurance position of parties in case influences the court in deciding the case
Nettleship v Weston judgment
Lord Denning; open approval of judges demanding a higher standard from parties known to be insured
What judge in what case demanded a higher standard from parties known to be insured?
Nettleship v Weston, per Lord Denning
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
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'
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
Gorringe v Calderdale
Lord Steyn expressed more measured concern of a compensation culture than Scott in Tomlinson
In what case did Steyn express more measured concern of a compensation culture than Scott in Tomlinson?
Gorringe v Calderdale
McDonald's Coffee Case shows what?
Media sensationalise any 'compensation culture'
What shows the media sensationalising compensation culture?
McDonald's Coffee Case; end result of compensation nowhere near $2.9 mil reported
The Compensation Act 2006 tried to do what?
Address public concern about compensation culture
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
What does BRTF data show?
Overall tort costs in UK are comparably lower to other developed countries
What data showed overall tort costs in UK are comparably lower to other developed countries
What Act tried to address public concern about compensation culture?
Compensation Act 2006
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
Thalidomide cases needed claimants to prove what?
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
Pearson Commission on a 'no fault' compensation scheme
No fault up to £2500 in road accidents
What is the main issue with the suggestion of the Pearson Commission?
Seems to prefer minor injuries to serious injuries
What Commission introduced the NZ Accident Compensation Scheme?
What academic in particular advocated abolishing tort system for compensation of personal injuries, leaving it to first-party insurance?
What did Atiyah advocate for in tort system?
Abolish it as compensation for personal injuries, leaving it to first-party insurance.
Who said that 'if the poor were not so poor, we could decently ask them to provide their own accident insurance'?
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'
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
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
What did the Institute of Actuaries find in 2002?
Tort claims make up 1% of GDP
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'
Who saw the figure by the Institute of Actuaries as relatively small?
Who saw the figure by the Institute of Actuaries as a 'very large sum of money'?
What did the BRTF show about Denmark in particular?
Only Denmark spent less than UK when 10 industrialised nation's tort claims were compared
Who believes compensation culture is an 'urban myth'?