Tort Q9 Flashcards
(3 cards)
Fault
Meaning:
- level of wrongdoing or blameworthiness for the act which caused the prohibited consequence
- backbone of criminal justice system
Significance:
- it’s a marker of blame that allocates legal responsibility and indicates that behaviour should be modified in the future, justifying impositions of penalties or fines
- causation as a fundamental basis: intention, recklessness, negligence and strict liability
- both AR and MR need to be present at same time
- level of fault is usually higher for higher MR, eg intention (purpose) and recklessness (foresight of risk), opposed to negligence (failure to reach the standard of reasonable person)
- voluntariness of conduct
Issues:
- strict liability offences - eg RvF and vicarious liability - imposition of liability even in the absence of fault
- fault can be transferred via defences such as Volenti non fit injuria and contributory negligence
- can be wrongly or disproportionality applied in some cases, causing incorrect sentencing
- voluntariness of conduct - liable if voluntary, but a person held responsible for the tort of another even though the person being held responsible may not have done anything wrong
Examples:
- negligence and the ‘neighbour principle’ - Donoghue v Stevenson - makes one liable for a breach of negligence where their acts/omissions will directly and foreseeably affect their neighbour
- Paris v Stepney Borough Council - the C should have been allowed a higher DoC due to being blind in one eye
Law and society
Meaning:
- Law acts as a mechanism of societal control through regulation, requiring a clear set of laws that are freely and accessible to all
- legislative rules enforced by government that carry sanctions when broken
Significance:
- prevents the likelihood of anarchy, with the main aim to protect people from harm (especially those less able to protect themselves eg children, disabled) through ensuring a common good that settles arguments and disputes
- deters behaviour deemed as negative, providing public good for all
- societal pressures can change the law making it relatively democratic, as society can be defined as a collective community that has similar norms and moral values, shared on a consensus
Examples:
- remedies - where damages and injunctions aim to discourage or prevent the committing of a tort
- OLA 84 - Lord Pearson argued that trespassers possibly owed liability had become outdated due to changes in social conditions
- Addie v Dumbreck - had stood for over 50 yrs and was in need of reform
- Roscoe Pound’s 1942 book, ‘Societal Control Through Law’ - states that claims, demands and desires can guide courts and express what individuals want the law to do (human given social order)
- the decline of religious and family institutions emphasize the importance of this, as law has become the paramount agency of societal control
Issues:
- laws can be slow to keep up with societal change, leading to outdated and potentially unjust laws
- powerful mechanisms, eg prejudice, discrimination or inequality, may withhold certain groups from the judiciary and political process, meaning the law may not reflect the views of all of society, only the views of those in power/telites in society
Law and morality
Meaning:
- interaction between the defined, rigid laws and the abstract and often fluid concept of morality
- legal rules are enforced formally (eg through government, police, court system), whereas moral rules are generally enforced informally (eg through social exclusion and condemnation)
Significance:
- reflect each other as law is shaped/changed by the morality of those making the law
- based on levels of fault that determine what is right or wrong, or which has more severe/harmful impacts
- injunctions and compensatory damages for torts deemed immoral reflects legal rules
Issues:
- morality is an inherently subjective concept, as different cultures, backgrounds and upbringings can result in different beliefs of morality eg some religious groupings may view divorce and abortion as immoral, whereas others not
- morality is ever changing - conflict as the law can be too rigid to adapt to these moral changes quick enough - hard to discern
- decided by law makers with their own view on morality
Examples:
- nuisance - would be deemed immoral to interfere with another’s private enjoyment of their land (law: injunctions and damages remedy this)
- R v R - marital rape was criminalized - shows how the law was slow to change as many in society would’ve believed it to be immoral prior to the law making it illegal
- contrasting theories: positivism and natural law theory
- positivism - law should be kept entirely free from morality, described by Aristotle as ‘reason free from passion’
- natural law theory - morality should be able to influence law, supported by theorists eg Thomas Aquinas and Lord Devlin
- UK law can be seen to reflect natural law theory more - changes in morality due to decline of religious institutions resulted in acts eg Abortion Act 1967 (would’ve been seen as immoral before, but now would be seen as immoral if it were not in the law)
- Hart-Devlin debate:
- Hart argued that law should only intervene to prevent harm, not to enforce morality (the ‘harm principle’)
- Devlin believed that law can justifiable enforce morality norms to preserve societal order (natural law theory)
