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University Degree: Tort Law
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- Marked by Teachers essays 4
Even where (a) and (b) are satisfied it must be 'just and reasonable' to impose such a duty.' 4 The Human Rights Act 1998 gives 'further effect to rights and freedoms guaranteed under the European Convention on Human Rights.' 5 The aim of the Human Rights Act is as stated in section 6 (1), 'courts should not act in a way which is incompatibe with a Convention right, as illustrated in Richard Buxton's article (p.57). The Convention has had the greatest effect so far through Article 6 regarding a 'fair and public hearing, within a reasonable time by an independent and impartial tribunal established by law,' 6 and also article 3, 'freedom from torture or inhuman or degrading treatment or punishment.'
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This approach has been adopted particularly where there is an overriding public or general interest which awards defendants a certain degree of immunity from litigation. Courts have often justified their actions of not imposing a duty of care upon public bodies using arguments that reflect their concerns should a different approach be taken. There has been a particular need to prevent the 'opening up of floodgates of liability1'. The underlying concern of this argument is that, particularly in influential cases, numerous different claims are likely to arise out of a single incident.
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The case of Wheat v. E Lacon & Co Ltd1 defines an occupier as "a person who exercises a sufficient degree of control over premises that he/she ought to realise that any failure on their part...may result in injury to a person coming lawfully on there." According to this definition, Ingrid may find herself liable for the nuisance caused to other neighbours such as Karl even though Jane conducts the experiments causing the nuisance. Furthermore, as Ingrid is aware of the fact that there are cracks in the walls adjoining Jane and Karl's house, it is foreseeable that fumes from
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There is a breach of this duty as expressed in the problem where Gerry is hit by a "car carelessly driven by Ingrid". Since both a duty and a breach can be established for both defendants the next issue to be looked at is with relation to causation. It is perhaps best to examine each defendant separately in relation to their liability towards Gerry since both events occurred independently of each other. Firstly, Gerry's rights need to be discussed in relation to his employer, Harry.
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in her temporarily repaired hull, despite an attempt made by the certifier for her to dock for permanent repairs.3 Lord Steyn held that it would not be fair, just and reasonable to impose a duty of care on a classification society as they were performing their duty for the cumulative benefit of all and thus do not have the liability of guaranteeing safety.4 Furthermore, it was mentioned that imposing a duty on the defendants would open the courts to more litigation as the Hague Rules would be limiting on ship owners.5 Indubitably, both cases conduct policy in a way that protects its defendants from an unjust claim.
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A clear difference can be defined when determining what general tortious liability is compared and contrasted to contractual liability.
On the contrary in the case of tort liability this rule is not taken into account and all of the injured parties can indeed sue. (Adams, A (2010). Law for business students. 6th ed. London: Pitman Publishing imprint. 250-310) 1b) i) The owner of a merchant store is required to maintain his or her store to such a extent that it would be safe for any visitor to visit, in law this is determined as a duty of care. Moreover a clear difference is established in law when looking at a young child and an adult individual.
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Liability In Negligence Problem case. Advise Greenwichshire Police whether they owe a duty of care in negligence to: a) Those injured at the rally b)PC Nick
In order to establish an existing duty, the neighbour principle will be applied. Evidently, there is no close personal relationship between the police and those at the rally; however as a public body whose presence is mainly there for the protection of the public, they do owe the duty of care. This was illustrated in Home Office V Dorset Yatch 5. This case concerned the question whether a duty of care was owed by the prison authorities in respect of the actions of youth offenders in custody.
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Under what circumstances will an occupier be liable for injuries or other losses suffered by persons on his land?
He need not have exclusive occupation. Two or more people may be 'occupiers'."1 In this case, the defendants owned a pub run by an outside manager. The manager was allowed to use the first floor of the pub as his own private accommodation. A guest of the manager was killed falling down the stairs on he first floor of the pub It was held that the defendants were occupiers if the pub and had therefore owed the deceased a duty of care.
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Tort Law Problem Case. The Plaintiff (widow of the deceased) namely Mrs Fogg is alleging, inter alia that the SimpleFlight.Com and Passepartout NHS Trust has caused the death of Mr Fogg and that the defendants are liable of negligence and trespass to t
The case of Caparo v Dickman12 replaced the two stage test developed in Anns case13. Which was overruled in the case of Murphy v Brentwood District Council 14 so I shall use three stage test which was introduced in the case of Caparo v Dickman15 Mr Fogg had been on a numerous tours by 80 Day Tour Travel coaches which contemplate he knew that these coaches had minimal leg room; on average of 10cm less than other coach companies and his journey will be lengthy therefore he was able to anticipate the distress. The affects are reasonable foreseeable by a reasonable person because the conditions of coaches, case in point is Palsgraf v Long Island
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In Scullion v Bank of Scotland  EWCA (Civ) 693. The decision in Scullion v Bank of Scotland plc (trading as Colleys) is very welcome at a time when the surveying profession is already under attack from lender claims.
the other to exercise such a degree of care as the circumstances required, where it was reasonable for him to do that, and where the other gave the information or advice when he knew or ought to have known that the inquirer was relying on him.' Lord Jauncey of Tullichettle in Smith v Eric S Bush4 summed it up by suggesting that a key aspect of liability would be 'knowledge, actual or implied, of [a] mortgagor's likely reliance upon the valuation must be brought home to him [the valuer].'
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Causality in Lynch Vs. Fisher. Did the original negligence of the driver of the parked truck set in motion a chain of circumstances following consecutively one upon the other which led to plaintiffs injury?
Gunter while attending to his wife. In complete delirium the defendant shot Lynch in the ankle causing serious damage. Upon these instances, the plaintiff has accordingly filed charges against the four defendants, Harry Fisher, Roger Wheless, their insurance company, Lumbermen's Mutual Casualty Company of Chicago, Ill., and Robert Gunter for the damages caused to his ankle. Finally, the court could see no break in events corresponding to the concurrent negligence of the parked truck and the collision to the injury of the plaintiff.
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Remoteness of damage is an interesting principle especially when analyzing two specific cases. They are apparently allocated in different areas of law, functioning in England and Wales. In first case claimant is Overseas Tankship (UK) Ltd and brings a sui
The flames quickly developed into a large fire which spread rapidly causing destruction of some boats and the wharf. Liability turned on the question of whether the damage was foreseeable, since furnace oil has such a high boiling point it is unlikely to catch fire under normal circumstances. Answer is no because the defendant could not foresee that the oil discharged would be ignited when a piece of molten metal would fall upon a floating piece of cotton. Therefore it was held that defendant was not liable for the fire but liable for the fouling. Liability is founded on the consequences not the action involved.4 The decision in this case was relied on the test which is based on requirement that the damage must be of a foreseeable type.
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Negligence law case analysis. As a customer, Olivia injured by an invalid carriage (Emmas) when she was shopping in Ploymart. Was there a breach of duty on the basis of a failure to protect?
Whether there was a breach of duty As a customer, Olivia injured by an invalid carriage (Emma's) when she was shopping in Ploymart. Was there a breach of duty on the basis of a failure to protect? The test is whether Ploymart and Emma provided a reasonable standard of care, if no, the breach is proved. First, the standard of care can be examined by a reasonable person measures the risk of harm against the cost of averting it. In this case, Olivia was injured by buggy of Emma even though Emma did not mean to hurt her.
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But Parliament has made it clear that in the case of a lawful visitor, one starts from the assumption that there is a duty whereas in the case of a trespasser one starts from the assumption that there is none.Discuss the above statement with
(Word limit 1500 words) Question 1a The judgment in Tomlinson v Congleton Borough Council (1) provides a text-book analysis of the Occupiers' Liability Acts of 1957 and 1984. The quotation as to duty perhaps gives a misleading impression of the true position and certainly is at odds with the observation of Lord Hobhouse that: "The two Acts apply the same general policy and the 1984 Act is a supplement to the 1957 Act". (2) In fact, Tomlinson has marked an ongoing trend in recent cases towards emphasising the concomitant duty of a visitor or a trespasser to exercise responsibility for their own safety.
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Negligence, causation and remoteness case. To advise the claimants, Abdul, Brian and Christie, it is necessary to establish whether a duty of care was owed to them and that physical or psychological harm resulted from an act of negligence. From the facts
He agreed to have the life support machine turned off. Brian is now suffering from anxiety and nightmares. iii) Christie was an ambulance driver and was one of the first to arrive at the scene of the accident. She climbed into the wrecked carriage to comfort Dave while firemen cut him free from the wreckage. She was so distressed by this experience that she has been unable to return to work. ........................................................................................................................................................................ To advise the claimants, Abdul, Brian and Christie, it is necessary to establish whether a duty of care was owed to them and that physical or psychological harm resulted from an act of negligence.
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The Justice of Torts. From its foundation, the law of Torts was designed to provide justice to those who had felt an injustice had been done against them.
The principles of Tort are not solely peaceful as Blackburn implies. Tort law also has a deterrent aspect; the threat or imposition of damages, known as exemplary damages, to alter people's behaviour (p. 540, Steele, 2007.) While Tort law does not generally impose a moral fault, it is used to alter people's behaviour (p. 74, Horore, 1995). Since the law of Torts is also the law of (unintentional) civil wrongs, exemplary damages may be imposed to pressure people into refraining from committing civil wrongs. These damages, imposed for their deterrent nature, are not always proportionate to the wrong committed; in fact, "[punitive] damages are [purported to be] justified on the basis of their deterrent effect."
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But despite the progress which the courts have gradually made over the course of more than a century of litigation towards the recognition of this head of damage (psychiatric injury), there remain severe restriction on the scope of recovery. Do you
This is also due to the fact that the law remains sketchy in relation to certain words and requirements. What will be considered psychiatric illness? In McLoughlin v O'Brian5, Lord Bridge said that "an acute emotional trauma, like a physical trauma, can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals whom it would be wrong to regard as having any abnormal psychological make-up." Mere grief or emotional distress caused by the injury or death of another or a loved one will not allow damages to be recovered, except for a limited, restrictive amount known as a claim for bereavement.
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`The negligence formula is unfair to claimants as it places too many obstacles in the way of obtaining compensation for personal injuries. England & Wales should adopt an alternative system of redress to allow claimants to obtain the compensation they des
Fault is a predominant feature in tort law, where in order to obtain compensation, the claimant must prove the defendant's blameworthiness by establishing the existence of all four elements in his or her claim. Fault can be seen to act as a justificatory tool for imposing liability, and the obligation to pay damages, on the defendant. However, this system does not always work in favour of the claimant and can mean that even where the claimant has suffered serious damage, they will be unable to obtain the compensation they deserve if there is inability to prove fault on the part
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In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for br
It is submitted that, an imperative act has also been brought by Compensation Act 2006,which may alter the knotty situation. Conversely, whether it or other case laws have been effectively solving the doubts, uncertainty, and long-awaited questions are to be discussed below. Chapter 2: Is Lord Bingham Cornhill at all true especially in personal injury actions? At the first glance, it is nonetheless, to some extent is true that, the more prevailing test would be 'But For' Test8 as it is said as the rudimentary test in proving causation.
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She received care from a physician but was unable to complete the semester and dropped out of Law School. Future Lawyer has launched a cause of action in negligence against Law School. ISSUES I. Does a university owe a duty of care to its students to take affirmative steps to halt online harassment from an unknown perpetrator? 1) Is the relationship between a university faculty of law and its student recognized as an existing category? 2) Is this relationship likely to be found to be analogous to an existing category? 3) Is the relationship likely to be recognized as a special category of duty?
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Defamation - it will be interesting to make compare the defamation law in the Russian legal system and the defamation law in the English legal system, as they are both part of completely different legal traditions. By examining these two different jurisdi
Every country has its own coin which is unique in its own way. This means that every legal system has its own way of evaluating freedom of speech and defamation law. Therefore, I think, it will be interesting to make compare the defamation law in the Russian legal system and the defamation law in the English legal system, as they are both part of completely different legal traditions. By examining these two different jurisdictions, I will try to evaluate whether defamation law infringes the fundamental human right of speech.
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Causation: Factual Causation: 'but for the defendant's breach would the claimant have suffered the damage?' the answer is no! Because of Simon Shock's breach of duty, Naomi Gamble has suffered severe burns to her face and hands. The 'but for test' was first applied in Barnet v Kensington & Chelsea Hospital. This test represents whether the defendant's wrong in fact caused the claimant's harm.3 Miss Gamble may rely on the 'but for test' to show that Shock's negligence in fact caused the property damage and the burns she had suffered. Using the test from Wilsher v Essex AHA, where a junior doctor was not found liable for inserting an oxygen tube into a vein instead of an artery of a premature baby.
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How do the Courts in England and Wales decide when a duty is owed by the defendant to the claimant? How should they decide these issues? To what extent should such a decision be purely a matter of principle, as opposed to policy?
This essay will attempt to describe the origins of the tort of negligence; outline and criticise how the Courts in England and Wales have, in the past, decided when a duty of care is to be imposed; discuss how they now decide whether a duty of care is to be imposed and finally; illustrate how they should decide these issues and whether an improvement can be made by a lesser reliance on policy considerations with more reliance on legal principles.
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That night the hot-water bottle burst and John was badly scalded. Joe was sleeping on the bunk below and some of the hot water splashed down his face, causing him injury Joe bought a hot water bottle form local shop. John made a contract with the local shop when buying the hot-water bottle; he was protected by the Sales of Goods Act 1979. Joe gave the bottle for John, refusing any payment, so there was no contract between Joe and John, and Joe was not user. However, when opening the hot-water bottle, it suddenly burst.
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It is often claimed that the fear of malpractice litigation leads to defensive medicine. Although this is a common complaint, it is not quite clear what defensive medicine actually is. Fear of litigation can lead to some good practices: better record keep
The establishment of the doctor-orientated standard was developed in Bolam v Friern Hospital Management Committee.5 Bolam was a mental health patient and agreed to undergo electro-convulsive therapy. He was not restrained or given any relaxant drugs and was injured as a result. In assessing whether a doctor breached the duty of care McNair J, asserted that 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.'
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