Chris Turner's right to be identified as the author of this work has been asserted under sections 77 and 78 of the Copyright, Designs and Patents Act 1988. In Unlocking the Law, all the essential elements that make up the law are clearly defined, to revive the marriage and make it unforgettable.
AIMS AND OBJECTIVES
SECTION
ARTICLE
CLAUSE
CASE EXAMPLE
JUDGMENT
QUOTATION
SAMPLE ESSAY QUESTIONS
SUMMARY
The origins of tort
A right to compensation implies some general common rules that are relevant to all parts of the law. The distinction can still be seen in tort law today – damages that are actionable in themselves, i.e.
General principles of liability .1 The character of torts
A legal historian will be able to find traces of the old rules in modern law, but for practical purposes the distinction is of little importance. They argued that the old rules should apply, her injury was direct and violent.
Tort liability arises from the breach of a duty established primarily by law; this duty is to persons generally and its breach is recoverable by an action for unliquidated damages.'.
- The functions and purposes of torts
- The interests protected by the law of torts
- The parties to an action in tort
This is illustrated by the decision of certain publishers to go ahead and publish defamatory material in the belief that if the 'victim'. Personal security is most obviously protected by tortious intrusion upon the person and intrusion upon land.
Member States of the European Union may be liable to their own citizens where the State has failed to implement EU legislation (Francovich v Italy [1991] ECR I-5357). For example, in a case of negligence, the actions of the child will not be judged by the ordinary standard of the reasonable person, but by the standard of a reasonable and prudent child of the same age.
For example, a person whose vehicle is damaged by the careless driving of a driver employed by a foreign embassy will not be able to obtain compensation if the driver can prove that the accident occurred during his employment with the embassy, unless immunity is guaranteed. abandoned. Victims of child crimes may well hope that the minor's parents are liable for the child's misconduct.
- Tort and mental state
- Alternative methods of obtaining compensation
- Relationships with other areas of law
- Fault and no- fault liability .1 Fault liability
- Strict liability
- No- fault schemes
When the requirements of the tort are met, the defendant will be liable even though in reality there is no fault in the sense of intent or negligence. Some have been partially implemented – the court system has been reformed in recent years and some provisions have been made to reimburse at least part of the compensation cost borne by the social security system.
More people are now taking out insurance policies which will pay out in the event of ill health, accidental injury or unemployment. Such policies are not inexpensive and
Taking all sources of compensation into account, this small portion of the total number of victims actually received about 25 percent of all money paid out for accidental injuries. Blindness is blindness if it is caused by an accidental injury or by a disease, but only the victim of the accident will benefit under the scheme.
There is some limited provision for compulsory liability insurance, for example in relation to road traffic accidents and accidents at work
The Pearson Committee also found that the cost of the tort system was disproportionate to the amount paid to claimants and that administrative costs absorbed a greater proportion of the budget than the costs of other sources of compensation, for example the social security system. Despite the failures of torts, people who suffer personal injury may be entitled to compensation from other sources provided they are able to meet the relevant criteria applicable to each.
A person injured as a result of a criminal act may be entitled to payment under the
The New Zealand plan has proven to be more expensive than expected and has been criticized for continuing to focus on the cause of injury, excluding disability due to degeneration. Compensation scheme for criminal injuries, although this is sometimes criticized as inadequate as awards are made on the basis of 'rates' rather than the extent of the victim's actual loss.
Social security benefits are payable to all those who qualify and not only to all who suffer injury. The level of such benefits is not generous, the criteria for qualification
- Joint and several tortfeasors .1 Joint and several liability
- Contributions between tortfeasors
- Tort and human rights
- An innovation in English law?
- The Human Rights Act 1998
- Incorporation of human rights into the law of tort
- Human rights and trespass to the person
- Human rights and negligence
- Human rights and nuisance
- Human rights and other torts
It must be regarded as inhuman and degrading treatment and punishment within the meaning of Article 3 of the Treaty' (paragraph 115). The merits of the children's case could therefore not be considered by the English court.
KEY FACTS
Duty of care
- The origins of negligence and the neighbour principle
- Development in defining duty and the two- part test in Anns
- The retreat from Anns and the three- part test from Caparo
J damage caused by the defendant's breach of duty, which was not entirely a consequence of the breach. The case gives us a clear example of a relationship in which possible damage is foreseeable and there is then a duty of care: the duty of a manufacturer towards the consumers or users of his or her products.
The problem of policy
- Policy factors considered by judges
- Policy and the refusal to impose a duty
- Policy and the three- part test
The Court of Appeal ruled that none of the claims were covered by immunity. In all the circumstances of the case it is fair, just and reasonable that the duty should be imposed on the defendant.
SAMPLE ESSAY QUESTION
What factors does a court now take into account to determine whether a duty of care should be imposed or not. The development of the duty of care in case of negligence Case Negligence requires the existence of a duty of care, which is.
Further reading
The standard of care and the ‘reasonable man’
The standard of care
The required standard of care is usually measured using an objective testing method. In this way, although the appropriate standard is of course factually determined based on the circumstances of the case, it is the standard that would be adopted by a 'reasonable person' confronted with the same circumstances that will be taken as the standard. on which the suspect's actions will be assessed.
The ‘reasonable man’ test
Determining the standard of care
- Foreseeability of risk
- The magnitude of the risk
- The extent of the possible harm (the ‘thin skull’ rule)
- The social utility of the activity
- The practicability of precautions
- Common practice
In this sense, the defendant must 'take the plaintiff as he finds him', the so-called 'thin skull' rule. This is especially true when the plaintiff's well-being is entrusted to the defendant.
The standard of care and different classes of defendant
- Children
- The disabled
- Motorists
- People engaged in sport
- People lacking specialist skills
- People using equipment
The Court of Appeal agreed that the referee had fallen below the standard of care he owed to the players. The Court of Appeal held that the appropriate standard of care was that of a carpenter of reasonable skill.
The standard of care appropriate to experts and professionals
- Breach of the duty of care and medical negligence claims
- The ‘Bolam test’
- Applying the test
- The Bolam principle and professionals generally
- Criticism of the ‘Bolam test’
McNair J established the standard of care for physicians as 'the standard of the ordinary educated man who practices and claims to possess that special skill'. V Harpwood, 'The end of the Bolam test Medical Law Monitor 144 Finally, one comment on the significance of Bolitho for the application of the Bolam test is also worth mentioning.
Fault liability and the need for reform
This can be especially true of the victims of pure accidents and those suffering from genetic disorders. J Understand the test for establishing causation in law, reasonable foreseeability of harm, so that the harm is not too minor a consequence of the defendant's breach of duty.
Introduction
J Understand the common means of establishing causation in fact, the "but for" test J Understand the problems that arise in proving causation in fact where there is. J proving that the damage is still sufficiently proximate in law to make the defendant liable for compensating the victim (causation in law – more often referred to as remoteness of the damage). This last field is the subject of section 4.5.).
Causation in fact and the ‘but for’ test
J under the "but for" test that the negligent act or omission of the defendant actually caused the damage to the plaintiff (actual causation);. The court acknowledged that there was evidence to show that the plaintiff would not have undergone the operation if she had not been warned of the risks, although she conceded that she may have been prepared to have the operation at a later date.
Problems in proving causation
- The problem of multiple causes
- Multiple concurrent causes
- Multiple consecutive causes
Medical evidence has shown that the cause of the disease is the inhalation of asbestos fibers. Again, the principle applies that the defendant must be liable only for the extent of the damage he actually caused.
Novus actus interveniens
- Breaking the chain of causation
- An intervening act of the claimant
- An intervening act of nature
- An intervening act of a third party
J When it is the plaintiff's own act that intervenes, the defendant is released from liability and the plaintiff has no possible recovery for the damages suffered. J Where a third party is responsible for the intervening act – the claimant will not take action against the original defendant – whether the claimant has any further action and remedy will depend on whether the third party was also negligent .
Causation in law and testing remoteness of damage
- The tests of remoteness
- Applying the reasonable foreseeability test
- Points for discussion
The court held that the defendants were responsible for the full extent of the plaintiff's blindness, rather than for causing blindness in one eye. But since he believed that the pollution was foreseeable, he held that the fire damage was also a direct consequence of the defendant's negligence.
Proving negligence
- Pleading res ipsa loquitur
- The effects of the doctrine
- The criteria for claiming res ipsa loquitur
- Strict liability in negligence
J Causation in fact is usually measured by the 'but for' test - harm would not have occurred 'but for' the defendant's breach of duty. J Remoteness of damage, legal causation is a legal test – the defendant is only liable for foreseeable damage.
Introduction
J Understand the criteria for determining the defenses of voluntary improper torts (voluntary assumption of risk) and contributory negligence. However, it is not easy to succeed in the voluntariness defense as the use of contributory negligence and apportionment of liability is fairer than denying any damages to a plaintiff when the defendant has breached a duty of care.
Volenti non fit injuria
Although the plaintiff knew of the risk, there was no evidence that he voluntarily accepted the risk. The court ruled that the plaintiff was indeed volenti and exercised a free choice.
Contributory negligence
J fault of the claimant (that he failed to take reasonable care for his own safety); And. J that the plaintiff's negligence (i.e. failure to exercise reasonable care) was a cause of the damage suffered.
Nervous shock (psychiatric injury) .1 The historical background
- Nervous shock, psychiatric injury and the type of recoverable damage
- The development of a test of liability
- Restrictions on the scope of the duty
J The cause of the nervous shock – the court accepted that it must be the result of seeing or hearing the horrific event or its immediate aftermath. J Primary victims – present at the scene of the shocking event and either injured or at risk of injury.
CASE EXTRACT
The problem of policy
J maintain the requirement for a close bond of love and affection with the primary victim in the case of secondary victims;. But this was later expanded to include a person who was in the friend zone, ie.
Pure economic loss .1 The traditional position
- Pure economic loss under Anns
- Pure economic loss after Anns
Further erosion of the basic principle that pure economic loss is irrecoverable came as a result of Lord Wilberforce's "two-part" test. Almost immediately the judges considered that the relaxation of the principle regarding the recovery of economic losses had gone too far.
Negligent misstatement .1 The origins of liability
- The criteria for imposing liability
The interesting point of the court's adoption of the principle in this case is that they were thinking that such a duty could be enforced despite there being no contractual relationship. The party receiving the advice acted in reliance on it – and in the circumstances it was reasonable for the claimant to rely on the advice.
