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Law of Tort2

Law of Tort2

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1
Law of Tort
What is tort? 
A tort involves the infringement of a legal right (or breach of legal duty) and gives rise to a claim in the civilcourts. Essentially it means wrong. The law of tort is the body of civil law which governs what happens when one person sues another personbecause of what that other person has done. The person brining the case is the claimant. The person againstwhom the case is brought is the defendant. There are some general principles which apply to all torts, but each also has its own set of rules which must besatisfied for any claim to succeed.
Remedies in Tort
People use the law of tort because they seek some remedy for the wrong they have suffered. Claimants may seekfinancial compensation (damages) or seek an order to stop continuing behaviour (injunction).
Tort distinguished from Crime
Criminal law governs the relationship between an individual and the rest of the community as a whole, whereascivil law (of which tort is a part) governs the relationships between individuals. There are many situations where it is possible to have both tortious and criminal liability.Differences between tort and crime:
 
 Tort claims are brought by the injured person who will be seeking a remedy to compensate him. Criminalactions are usually brought by a public official (Crown Prosecution Service) rather than the victim.
 
Main function of a tort claim is compensation of the victim. Main function of criminal proceedings ispunishment of the offender.
 
 Tort cases are dealt with by the civil courts (county court or high court), criminal cases dealt with by thecriminal courts (magistrates or crown court).
Tort distinguished from Contract
Similarities:
 
Both are civil claims which will be brought about in the county court or high court.
 
Claimants in both contract and tort actions will usually damages as the principle remedy.
 
Functions of both areas of law are to compensate the claimant for the loss suffered due to the defendant’swrong doing.Differences:
 
In contract, the parties’ obligations are fixed by the terms of the contract.
 
In tort, liability does not depend on any consensus between parties; it is determined by rules (largely judgemade) which dictate whether the defendant’s wrongdoing constitutes a tort.
 
In contract only the parties to the contract can sue.
 
In tort, the potential scope of liability is much wider. As obligations in tort are imposed by law, they areowed to the world at large.
 
In contract, obligations are generally undertaken voluntarily (both parties agree to enter the contract), in tortobligations are imposed on a defendant by law.Because of the similarities between tort and contract, there will be occasions where a claimant has potentialclaims in both areas of law.
Functions of the law of tort 
Compensation
Compensation of victims is seen as the law of torts principle function. Although there are issues which couldhamper a victim’s ability to use the law of tort to claim compensation:1.
 
 The need to go to court to achieve compensation, in an ideal world the victim would be compensated at thepoint of need and not have to wait.2.
 
 The cost of litigation: to use the court system the victim must be able to afford to pay the legal costsinvolved.3.
 
Can the defendant afford to pay the compensation?
The importance of insurance on tort as a compensation system.
 
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Due to the considerable number of incidents on the road and at work causing injury, compulsory insurance wasintroduced some time ago as a matter of public policy.In a medical negligence case, the doctor involved would also be covered by insurance. Due to the increasedpublic awareness about legal rights and responsibilities, and the consequential increase in litigation, it is nownormal for doctors and other professionals (e.g. lawyers and accountants) to be insured in respect of the workthey do.In short, it is often the case that unless the defendant is insured, the victim regardless of his need forcompensation is left with no effective remedy in tort and must look somewhere else to meet his needs.
Deterrence
 This is another function of the law of tort. E.g. you may think twice about falsely accusing someone of being athief, if you know you will have to pay him damages out of your own pocket. This is most relevant in caseswhere a defendant is not insured against the claim. Potential liability in tort however may have a deterrent effect.
 Justice
It is often said that tort allows justice to be done. Justice has two aspects: retribution against the wrongdoer andcompensation for the victim.
Vindication of rights
 The claimants may wish to make a point of principleor initiate an investigation or provoke the authorities intoacting. E.g. in some cases the personal representatives of a murder victim have successfully brought proceedingsin tort against the alleged murderer, as a means of spurring the prosecuting authorities into action. This function of the law of tort is particularly prevalent following large-scale disasters such as the Piper Alpha oilplatform explosion. Victims of the families who died often wish for the wrongdoing of others to be recordedformally. The deterrence function of tort can also be seen as victims/families do not want anyone else to have toexperience what they have. In some cases vindication of rights and deterrence is more important to the claimantsthan compensation.
General Principles 
Different types of harm
 The claimant must show that the loss or injury he has suffered is a type of harm recognised by the existing law otort, or he must persuade the courts to extend the law so as to protect him. This does not mean that the claimantmust always suffer tangible harm (i.e. injury or property damage). Some torts are
actionable per se.
claims inthese torts (e.g. trespass to the person) do not require the claimant to have suffered any actual injury or damage.For these torts the infringement of a legal right that is protected by the law of tort is all the ‘harm’ that theclaimant needs to show.
Claims falling outside the scope of tort
If a claimant is unable to show that he suffered a type of harm which is recognised by tort then his claim in tortwill fail unless he can convince the court to extend the law.
Bradford Corporation v Pickles 1985 
the claimant soughtan injunction to prevent the defendant sinking further drains which would have rendered the reservoir useless.Pickles had legitimately used his own land and had not caused the Corporation any harm that was protected bytort.
Who does what in a tort claim?
In all established torts, the law has developed a number or elements that the claimant must prove. If a claimantsucceeds in doing this, he has established a case in principle (often called
prima facie 
case) and will succeedunless the defendant can establish a defence. The burden of proving that a defendant has committed a tort lies with the claimant. However the burden oestablishing a defence lies with the defendant.In contrast to criminal cases, where the standard of proof is beyond reasonable doubt, in civil cases the claimantmust prove his case ‘on the balance of probabilities’. The main reason why there is a higher standard of proof is required in criminal cases is because a defendant risklosing his liberty if found guilty. In contrast, a defendant in a civil case will usually face only financial penalty.
Miscellaneous Issues 
Parties
As a general rule an individual can sue or be sued by anyone.
 
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Anyone who is under 18 years can sue or be sued but will conduct the litigation through a ‘litigation friend’ oftena parent or guardian. A child’s parents may be involved as a litigation friend but parents are not liable legally orfinancially for the torts of their children. It is not often worth bringing a claim against a child defendant.A limited company Ltd has its own legal personality and can sue or be sued in its corporate name.Partnerships (firms) are merely a collection of individuals with no legal personality, procedural litigation rulesallow them also to sue or be sued in their partnership name.When a person dies, any claim against him survives and is taken over by his personal representatives.
Limitation Period
Any claim in tort must be commenced within certain time limits. These so-called limitations are found in theLimitation Act 1980.For tort claims the limitation period is generally 6 years from when the cause of action arises. In special cases aclaim for defamation must be brought within 1year of the publication of the defamatory statement.Any claim for person injuries must be brought within 3 years of the date of injury.When some under 18 is the claimant, the relevant period of time does not start until the child reaches 18 years.
Vicarious Liability
When an employee commits a tort in the course of his employment then the law allows any injured party to suethe tortfeasor’s employer as well as or instead of the employee himself.
Tort and Human Rights
Although the HRA 1998 creates a direct cause of action for breach on Convention rights against public authoritydefendants only, the impact of this new Convention system can be seen in many recent tort cases.
How to analyse a tort action 
1.
 
Identify all the possible claimants and defendants2.
 
Identify the nature of the loss for each potential claimant3.
 
Consider which torts (may be more than one) may be relevant4.
 
Explain the elements of the relevant tort(s).5.
 
Apply the law for the relevant tort(s) to the facts of the case, discussing any particular issues that may arise6.
 
Identify any arguable defences and discuss these in relation to the facts of the case7.
 
Reach a conclusion if possible on whether the defendants will be liable8.
 
Consider what the possible remedies are.
The tort of trespass to the perso
 Trespass to the person is an umbrella term used to describe 3 separate torts: assault, battery and falseimprisonment. These torts were developed centuries ago to protect the personal integrity of citizens and remainimportant today as a means of upholding our rights and freedoms.
Common Issues
Elizabeth raises her fist and threatens to hit Fiona, George throws a bucket of water over Hazel. In thesesituations the victim of the intentional conduct has not suffered any actual injury. This does not matter whenclaiming in trespass to the person.Both assault and battery require intentional conduct. In
Letang v Cooper 196
Lord Denning said if the defendant’sactions are only careless (negligent) then the claimant should sue in tort of negligence.Again trespass to the person is actionable per se the claimant need not prove any tangible physical harm inorder to sue.
Definition of assault and battery
Battery
the intentional direct application of unlawful force to another person (the attack itself) 
Assault –
an intentional act by the defendant that causes another person to reasonably apprehend the immediate infliction of a battery upon him (fear of an attack).
Requirements of battery
 
Intentional application of unlawful forceIn
F v west Berkshire 
Lord Goff said that there was a ‘general exception embracing all physical contact which isgenerally acceptable in the ordinary conduct of every day life.’ Such conduct falls outside the scope of batteryand is therefore not unlawful.
 
Intentional conduct

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