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TORT- INTRODUCTION (Policy (considerations the courts take into account in…
TORT- INTRODUCTION
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Tort distinguished
Crime - concerned with relationship between individual and state (public law) where as tort is private law. Punishment must fit crime = the level of compensation must suit the tort
Con & ad - administrative law plays a role in law of tort through activities of public authorities and negligence
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Policy
considerations the courts take into account in regard to the effect of its decisions socially, politically, economically
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Insurance - courts are more likely to find a defendant liable if they are insured (or should have been insured) as they have the means to pay damages. Spreads the cost of compensation through society
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Fault Liability
It is sometimes necessary to show that he or she did so with a particular state of mind or without sufficient care. This can be intentionally, where the tortfeasor deliberately and knowingly performed an act fully cognisant of the consequence it would have; negligently, where the tortfeasor is careless about whether or not the at will result in certain consequences; or maliciously, where the tortfeasor performs an act out of spite or with an evil motive.
Why require fault?
There are many purported justifications for the requirement of fault. Most obviously, the notion appeals to social conceptions of what is 'just'. According to this argument, you should only have to pay for acts of omissions that are in some sense blameworthy and for consequences which were intended. A more sophisticated spin-off from this line of argument focuses upon the consequential deterrence effect of a fault system. Responsible conduct will only be encouraged if accountability is reserved for irresponsible conduct, making individuals responsible for their ations.
Capacity to limit the number of actions that can be successful- the allocation of responsibility in the form of pecuniary reward only serves to shift the burden off one to another party. Doesn't actually remove it
Strict Liability
robs the defendant of the ability to extinguish his liability merely by virtue of showing that he has taken reasonable care
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