Tort Law Lecture 1 - The Nature, Meaning and Functions of Tort Law PDF

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The Nature, Meaning and Functions of Tort Law
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Tort Law I Lecture 1 3rd September 2013 Rick Glofcheski A305 The Nature, Meaning and Functions of Tort Law Readings: ch 1 of Tort Law in Hong Kong (3rd edn) Lecture Outline: 1. What is tort law? It could be vague since many different activities would be included. - A body of legal rules pointing to the ones who caused the harm (responsive system). - Protects us from physical harm to person or property 2. How does tort law protect us? - by requiring the wrongdoer to pay money to the victim of harm, using the weapon of compensation 3. Where are the Rules of Tort Law? Case Law(Common Law) and Legislation (Ordinances and regulations) e.g. Misrepresentation Ordinance 4. What is a tort? - Tort in French = wrong - A form of wrongful conduct that  causes harm to person or property for certain lesser interests (e.g. personal injuries, emotional harms, loss of reputation, being insulted, suffered nuisance in a noisy environment, property damage)  gives rise to a legally enforceable right to compensation on behalf of the victim(a tort action) 5. What interests does Tort Law protect? 1. Safety of the person - Negligence (careless conduct) - trespass to person (deliberate conduct) 2. Security of Personal Property and land - negligence - trespass to land (deliberate entry) - nuisance (interference by neighbor) 3. Reputation - defamation (untrue harmful ) 4. Economic interests (*Tort law is reluctant to protect purely economic loss.)

Tort Law I Lecture 1 3rd September 2013 -

negligence deceit (deliberately false statement)

6. How is tort law different than contract law and criminal law? - lots of overlap between contract law and tort law e.g.1. careless bus driver causing injury to passenger passenger sue the driver for breach of contract. Passenger gives money in exchange for a safe ride. Action for breach of contract and Negligence in tort. Remoteness rule on contract law (Hedley case) e.g.2. food poisoning of customer in restaurant e.g.3. careless financial advice by broker to client - overlap with criminal law Crime/Tort actions: Theft/conversion, rape/trespass to person, break & enter/trespass to land, careless driving/ negligence Inefficiency of tort court for 5 years a case Tort provides a means of redress for victims 7. What are the basic functions of tort law? - Compensation for injury or damage (presumes injuries have been caused: A injured by B’s activity, A seeks compensation from B, tort law will order B to compensate for A in some circumstances) - Deterrence (incentive to act more carefully) - Economic efficiency - Psychological (appeasement/ vindication(justice) ) - Public forum/watchdog 8. The Fault Principle No liability if prove fault. 2 forms of fault: - careless/unreasonable conduct which results in harm - intention to cause harm *Plaintiff has the burden to proof on a balance of probability Critique - Does not really reflect morality - P cannot get compensation merely because he can’t prove fault? Between 2 ‘innocent’ person who should bear the loss? - Randomness of outcome, P obliged to pay D’s legal costs if cant prove fault

Tort Law I Lecture 1 3rd September 2013 9. A critique of the functions of tort law: First tutorial is designed to uncover the shortcomings of tort law. - delayed – plaintiff must sue - legal standard vaguely defined - often defendant is insured, doesn’t pay from his own pocket - no punishment - criminal law may be a stronger deterrence - self-preservation as true motivation - economic inefficiency: difficult to quantify human life and personal injury - psychological satisfaction: litigations has anxieties on its own, timeconsuming and costly 10. Alternatives to tort law - strict liability for causation only - no-fault compensation (State-administered statutory schemes) e.g. New Zealand, ECO Learning Outcomes: At the end of the lecture, and after reviewing your notes, you should be able to 1. explain, in general terms what is a tort and what is tort law 2. explain the sources of tort law and the broad functions of tort law within the legal system 3. explain some of the major distinctions between tort law and contract law and criminal law 4. explain the ‘fault principle’ 5. recognize and explain some of the shortcomings of tort law in performing its stated functions...