What is the law of tort for, and what theories underpin it?
Rules and theory of tort: the nature and purpose of tort law, the relationship between tort and fault, the aims of compensation and deterrence, and policy considerations.
A focused answer to the AQA A-Level Law rules and theory of tort topic, covering the nature and purpose of tort law, the relationship between tort and fault, the aims of compensation and deterrence, and policy considerations such as the floodgates argument.
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What this dot point is asking
AQA wants you to explain what tort law is for, the role fault plays in it, the aims of compensation and deterrence, and the policy considerations judges weigh when developing the law. This synoptic theme should be applied across the tort topics.
The nature and purpose of tort
The principal aims of tort are compensation (restoring the claimant to the position they were in before the wrong, so far as money can) and deterrence (discouraging others from acting carelessly). It also marks out standards of acceptable conduct and provides a means of loss-distribution, often through insurance.
Tort and fault
Policy considerations
Because tort law is largely judge-made, the courts openly consider policy when deciding whether to recognise a duty or extend liability. Key arguments include the floodgates concern (that recognising a duty would open the door to indeterminate claims, raised in psychiatric injury and economic loss cases), the wish to avoid crushing liability on defendants, the availability of insurance, and whether it is fair, just and reasonable to impose a duty (the third limb of Caparo v Dickman).
The fault debate is the central evaluation theme. Arguments for a fault requirement are that it is morally fair to make people pay only for harm they are to blame for, that it deters careless conduct, that it gives certainty, and that it respects individual freedom of action. Arguments against strict reliance on fault are that it can leave a deserving victim uncompensated where fault is hard to prove (medical and industrial cases), that proving fault is costly and slow, and that the real issue is often who can best absorb and spread the loss. This explains the appeal of strict liability (Rylands v Fletcher, vicarious liability) and of insurance-backed and no-fault schemes (such as those used in New Zealand and for some UK industrial injuries), which compensate without the need to identify a blameworthy defendant. A strong synoptic answer weighs the moral and deterrent value of fault against the compensation and loss-distribution advantages of strict and no-fault liability, applying examples from negligence, occupiers' liability and vicarious liability, and reaches a reasoned conclusion on the right balance.
How the theory theme is examined
The rules-and-theory content frames the longer evaluative essays in the tort module. Examiners reward connecting abstract aims and the fault debate to concrete torts, deploying the policy arguments (floodgates, insurance, deep pockets), and arguing to a reasoned conclusion.
Exam-style practice questions
Practice questions written in the style of AQA exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
AQA 202015 marksDiscuss the extent to which liability in tort should depend on proof of fault. [15 marks]Show worked answer →
A 15-mark essay needs structured AO1, AO2 and AO3. Explain that most torts are fault-based (negligence requires a breach of the standard of care) and link this to the moral idea that liability should follow blameworthiness, with the burden on the claimant to prove fault.
Then evaluate the strict-liability exceptions (Rylands v Fletcher, vicarious liability), arguing they are justified where one party creates a risk, profits from an activity or is better placed to insure and bear the loss. Weigh the certainty and deterrence of fault against the better compensation and loss-distribution that strict liability and insurance provide. Markers reward a clear argument, accurate examples, the policy arguments (floodgates, insurance, deep pockets), and a supported conclusion.
AQA 20199 marksExplain the main aims of the law of tort and the policy considerations that influence its development. [9 marks]Show worked answer →
Explain the aims: compensation (restoring the claimant, so far as money can, to their pre-tort position) and deterrence (discouraging careless conduct), together with marking standards of conduct and distributing loss through insurance.
Then explain the policy considerations judges weigh: the floodgates argument (fear of indeterminate claims, seen in psychiatric injury and economic loss), the wish to avoid crushing liability, the availability of insurance, and whether it is fair, just and reasonable to impose a duty (the third limb of Caparo v Dickman). Markers reward the aims, named policy factors and the link to how tort law develops.
Related dot points
- Negligence: the duty of care and the Caparo test, breach of duty and the standard of care, causation and remoteness of damage, and the rules on pure economic loss and psychiatric injury.
A focused answer to the AQA A-Level Law negligence topic, covering the duty of care and the Caparo test, breach and the standard of the reasonable person, factual and legal causation, remoteness, and the special rules on psychiatric injury and pure economic loss.
- Occupiers' liability: the duty owed to lawful visitors under the Occupiers' Liability Act 1957 and the duty owed to trespassers under the Occupiers' Liability Act 1984.
A focused answer to the AQA A-Level Law occupiers' liability topic, covering the duty owed to lawful visitors under the Occupiers' Liability Act 1957 and the more limited duty owed to trespassers under the Occupiers' Liability Act 1984.
- Private nuisance and the rule in Rylands v Fletcher: the elements of private nuisance, relevant factors, the strict liability rule in Rylands v Fletcher, and the available defences.
A focused answer to the AQA A-Level Law nuisance and Rylands v Fletcher topic, covering the elements and factors of private nuisance, the strict liability rule in Rylands v Fletcher and its requirements, and the defences available to each.
- Vicarious liability: the requirement of a relationship of employment or one akin to it, the requirement that the tort be committed in the course of employment, and the justifications for the doctrine.
A focused answer to the AQA A-Level Law vicarious liability topic, covering the relationship of employment or one akin to it, the requirement that the tort be in the course of employment, the close connection test, and the justifications for the doctrine.
- Defences and remedies in tort: the defences of contributory negligence and consent (volenti non fit injuria), and the remedies of compensatory damages and injunctions.
A focused answer to the AQA A-Level Law defences and remedies in tort topic, covering the defences of contributory negligence and consent (volenti non fit injuria) and the remedies of compensatory damages and injunctions.
Sources & how we know this
- AQA A-level Law (7162) specification — AQA (2017)