Tort Law

what is tort law 

vs criminal law

Essentially it is about getting compensation when damage has been inflicted. Criminal law is more focused on things that are illegal, tort law is more general and can focus on liability issues as well. A crime technically did not take place but damage was still inflicted.

Criminal law is about punishing and tort is more about compensation, criminal law is about public law and tort is about private

Elements of tort law

common law

Action/ Omission: Its about things that humans do, it has to be connected to a human action

Negligence - Breach a Duty of Care: You must be able to say that you has a duty to act differently

Causation: action must be connected to the damage, you must be able to prove it

Damage

duty of care is a common law concept based on social circumstances

elements in civil law

1. There must be an intentional or negligent act or an omis- sion that violates a legally protected right or interest of another person.

2. The unlawful act or omission must have caused damage of a type which qualifies for compensation.

a legally protected right

common specific judge made categories: case has to fit into a category, civil law: broad principles, each case is specific

what is enough for something to be a tort

It must be a wrongful act, it must harm a legally protected interest.

In common law a duty of care is breached, causation, harm.

Must come from wrongful act, just harm is not enough.

It cannot go to court because a duty of care was not breeched

The law cannot step in in the scenario

Duty of care

A duty of care is the legal or ethical obligation to act with reasonable care to avoid causing foreseeable harm to others.

There are hundreds of scenarios

Learned Hand Formula

The Learned Hand Formula can be used to determine whether a duty of care exists.

If potential harm x probability of harm > cost of prevention = there is a duty of care

the formula comes from the USA and its primarily used there

First step in establishing liability

It comes from common law

common law comes from case law: Donahue vs Stevenson: the law was made out of the case

Strict liability

Strict liability exists when somebody is liable for damage that was not caused by his or her own wrongful act. It is possible to distinguish two kinds of situations:

1. Liability for damage caused by someone else’s act (7 Sect. 4.1)

2. Liability without a tort-feasor for damage caused by a defective or dangerous thing or activity

More dangerous activities, nature of the activity

you need to have some law saying the activity is considered dangerous

Vicarious Liability

you compensate even if it not your fault but indirectly it is: eg parents responsible for children, employer responsible for employee

usually when the person who didnt cause the damage but is still responsible has some ability to control the behaviour of the person who actually caused the damage

In most legal systems, the basic requirements for employer liability are:

1. The employee must have been at fault, which means that he acted intentionally or negligently.

2. The employer must have had sufficient power of direction and control over the employee’s activities.

3. The harm must have been caused in the course of the employment.

corrective justice 

involves rectifying something that has gone wrong. A typical example is the justice that is involved in the proper punishment of criminals or the compensation of the damage that one person caused to another.

The idea is that a wrong must be corrected, in the case of damage the damage must be fixed

focuses on relationship between victim and wrong doer, purpose is to restore justice

Distributive justice

Distributive justice is involved in the distribution of some «good» or «bad» over a group of person

Under distributive justice, compensation does not necessarily restore the status quo, but can be used to achieve a fair distribution of wealth over society.

sometimes the wrong doer is a group of people so you distribute the compensation , collective responsibility

insurance links to this