rules and theory of tort

• Law of Tort


  A collection of civil laws that have evolved since medieval times around the same time as contract laws were being developed
• Tort


  A civil wrong that compensates a person who has suffered loss, been injured or whose property is damaged
• Claimant


  The person suffering the loss
• Defendant


  The individual or business who has caused the loss
• Remedy


  Usually damages (money) but sometimes an injunction
• Aims of Tort (civil wrongs)

  • Provide compensation
  • Achieve justice for victim
  • It is morally fair that the person caused injury should be required to pay for the suffering
  • Loss distribution
  • To achieve policy aims of improving standards
• Deterrent


  Tort law aims to act as a deterrent to others in a given situation
• Civil law


  Concerned with settling disputes between individuals, between businesses, or between a business and an individual
• Criminal law


  Aims to punish wrongdoing
• Civil case


  Started by the person who has suffered the loss or injury
• Criminal case


  Started by the state
• Burden of proof


  The obligation on a party in the case to establish the evidence
• Standard of proof


  On the balance of probabilities (lower than criminal cases)
• Protected interests in tort

  • Your 'person' (including physical and reputational harm and personal freedom)
  • Your 'land and property' (including direct and indirect interference with land, property and rights over land)
  • Your 'economic loss' in certain circumstances
• Compensation culture


  Refers to an attitude to sue even for the most trivial reasons, developed in the USA, approach to taking risks has changed as a result to avoid claims
• Floodgates argument


  To argue that recognising a cause of action may lead to a dramatic increase in litigation or a 'flood' of similar claims, exposing a Defendant to potentially indeterminate liability
• Areas of Civil Law

  • Tort Law
  • Contract Law
  • Family Law
  • Employment Law
• Liable


  The Judge's decision that the case against the defendant is proved and that the defendant should compensate the Claimant (or, in the case of 'Nuisance' be subject to an 'injunction')
• Role of the Court in civil claims

  • The Civil Court operates separately from the 'Criminal Courts'
  • It is the responsibility of the 'claimant' to prepare his/her claim and to identify the initial evidence showing that he/she does have a case
  • The claimant will also have to suggest the amount of 'damages' he/she is intending to claim
  • In a Civil Court a sole Judge will make the decisions relating to the case - Liability, Remedy, Legal Costs
• Damages


  The remedy awarded to a successful claimant in a tort case
• Injunction


  A remedy mostly related to 'nuisance' claims
• Burden of proof


  The obligation on a party in the case to establish the evidence to a 'required degree'
• Strict liability


  Torts that do not require 'fault' to be proved, usually simpler and cheaper for the claimant to prove
• Relevant strict liability torts

  • Nuisance
  • Rylands v Fletcher
  • Vicarious Liability
• A tort is a civil wrong; the case will usually be between individuals or between an individual and a business
• The state is rarely involved in a tort claim
• The aim of taking tort action is usually to claim compensation (damages)
• The standard of proof in a tort claim is the 'balance of probabilities'
• The burden of proving the case is on the claimant
• The aim of a tort award is to place the claimant back into the position they occupied before the matter under consideration – in so far as money can do so
• Torts based on negligence require the claimant to prove the 'fault' of the defendant
• Judges aim, where possible, to 'balance the interests of the parties' in a case, provided the interests are on the same level. When they are on different levels the public interest will take precedence over the private
• It is morally right that if a duty of care is owed, if it is broken, compensation should be paid
• Judges attempt to provide justice in every case as far as they are able to do so
• Distinction between tort and criminal law

  Purpose - Tort to provide compensation, Crime to maintain law and order<|>Standard of proof - Tort lower, Crime higher<|>Judiciary - Tort a sole judge, Crime may be magistrate or jury<|>Consequences - Tort compensation, Crime punishment/imprisonment
• Distinction between tort law and contract law

  Relationship - Tort no formal agreement, Contract contains agreed terms<|>Remedies - Contract may be imbedded, Tort usually damages