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University Degree: Tort Law

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  • Marked by Teachers essays 4
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  1. 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.

    • Word count: 3977
  2. 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.

    • Word count: 3211
  3. 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.

    • Word count: 3782
  4. Legal Memo

    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?

    • Word count: 3842
  5. 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.

    • Word count: 3269
  6. Common law - Tort

    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.

    • Word count: 3709
  7. 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.'

    • Word count: 3151
  8. The Law Commission Consultation Paper No 137, Liability for Psychiatric Illness[1] made radical changes to the scope of recovery for psychiatric injury.he subject matter which has been in contention is negligently inflicted psychiatric illness also

    However, the Law Commission do state that it may be arguable that the requirement of a recognised psychiatric injury may be enough. The reason of fraudulent and exaggerated cases did not sit well with the Law Commission. According to medical evidence, this was highly uncommon due to the availability of technology in conducting psychological tests. Furthermore, the reason of psychiatric injuries not being as serious as physical injuries was inaccurate. As seen in the argument by Mullany and Handford13, it stated a wounded mind is harder to heal compared to a wounded body.

    • Word count: 3485
  9. Defamation Law

    While a material loss can be recompensed easily enough, this doesn't hold true for a loss of reputation. Tort law concerning defamation has had a long and twisted history. While in most countries two forms of defamation: libel which is of the written for and slander which is oral; are recognised, the distinction between these two which developed in Common Law has been abolished in most countries. The reason given is that the distinction is absurd on all counts given modern times and circumstances.

    • Word count: 4668
  10. Many liabilities in tort arise by virtue of the law alone and are not fixed by the parties. By contrast, the law of contract is based notionally on agreements, the terms of which are fixed by parties. However, in modern law it is unrealistic to suppose

    similarly the Act also provides automatic protection for the consumer and obliges the seller to supply goods which correspond with any description he has given of the goods. This point was clearly illustrated in the case Beale v Taylor [1967]3 This case centred on a car advertised as a "Herald convertible,white,1961,twin carbs" In fact the car was a combination of two cars, where the back of the car was from a 1961 model but the front was from an earlier model.

    • Word count: 3463
  11. Various issues of Tort law (Based on a fictional case)

    However in the same case Lord Roskill observed that "such phrases are not precise definitions. At best they are but labels or phrases descriptive of the very different factual situations which can exist in particular cases and which must be carefully examined in each case before it can be pragmatically determined whether a duty of care exists" So have the three requirements been met to establish a duty of care between Peter and Caroline? A case which clearly settles this matter is Langly v Dray where the ratio of lord stewart-smith held that "A driver of a motor-car owes a

    • Word count: 4804
  12. "A duty of care arises not merely when damage is reasonably foreseeable, but when it is just and reasonable to impose liability" Critically discuss.

    Lord Atkin's Neighbour Principle The modern starting point is in Donoghue v Stevenson [1932]3, where Lord Atkin attempted to lay down a general principle which would cover all the circumstances the courts had already held that there could be liability under negligence. The judgement contained few key elements for the benefit of future cases. Firstly that negligence is a separate ground to claim under tort. Furthermore, lack of privity of contract is irrelevant to mounting an action; therefore the House of Lords recognized a new relationship as giving rise to a duty of care between manufacturers and the ultimate consumers.

    • Word count: 3509
  13. Is there a Duty of Care?

    The elements of negligence under Tort Law are the existence of a legal duty of care, a breach of that duty, whether the breach directly caused the damage and finally, whether the damage was foreseeable. The first element must be satisfied in order to maintain a successful claim. A duty of care is, essentially, the relationship between the defendant and the claimant by which there is an obligation upon the defendant to take proper care to avoid causing injury to the claimant.

    • Word count: 3327
  14. property law

    Now a third party can enforce a contractual term where the contract either expressly states that term should give rights to a third party, or where a particular term purports to confer a benefit on a third party. The other side of the privity rule is that only the person or company who actually sold the product can be sued, and this part of the rule remains. If the seller cannot be traced, is bankrupt or otherwise unable to pay damages, the consumer has no claim in contract against anyone else involved in the product's supply.

    • Word count: 4001
  15. negligence caustion assult battery

    Nevertheless this argument seems very weak due to the barrier between Edward and Tobias, more likely that the "threat" isn't immediate. Edward can except and reconcile the situation. When Tobias slapped Will on the back while he was running down the stairs, it was unlikely that Will was aware of this. Therefore the possibility of this constituting to an assult is slim, the element of apprehsion has not been satisfied. It is only an assult if Will was aware of Tobias approaching him.

    • Word count: 3270
  16. How does the law of tort apply in the context of sport?

    Not all injury-causing acts are negligent per se, particularly in contact sports. The key question was: (whether) is a breach of the constitutive rules of a sport (was) determinative of liability or is (was) some other standard to be applied? Much needed clarification on the post-Condon position was offered in Caldwell v Maguire and Fitzgerald13. The duty of care was defined as being a duty to exercise 'all care that is objectively reasonable in the prevailing circumstances for the avoidance of infliction of injury'14 to other participants.

    • Word count: 4260
  17. Consider what is meant by concurrent liability in tort and contract. Using examples from decided cases examine how such liabilities can arise, and how the courts have dealt with the issue of the interrelationship between obligati

    Public health-fire brigade-payment for service-request transmitted through police-liability of owner of premises. The court held that there was a contractual relationship between the appellant and the fire brigade, therefore, liable under an implied contract to pay for the brigade's services. The law of tort protects person's interests. These interests can be protected by a court by awarding a sum of money, compensating the individual for civil wrong that occurred. 'The paradigm tort consists of an act or omission by the defendant which causes damage to the claimant.

    • Word count: 3026
  18. A Critical Examination of the Concept of Breach of Duty of Care

    that the party complained of should owe to the party complaining a duty to take care and that party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty".5 Flowing from these, several classes of circumstances have emerged in which the courts have held that a duty of care exist to a plaintiff from the defendant. These include cases of: (a) Road accidents, where it has been held that a driver owes a duty of care to properly control and operate his vehicle as not to injure or hit another lawful road user.6 (b)

    • Word count: 6356
  19. Assisting a trustee's breach of fiduciary duty.

    Carnwath J found that there was no trust, so there could be no breach, and that Leach had not acted dishonestly. The Court of Appeal came to a different conclusion. Their Lordships held that the undertaking did create a trust, and that Leach had been dishonest. The House of Lords held unanimously that the undertaking created a Quistclose trust, but a majority of 4-1 found that Mr Leach was not dishonest. There was much controversy over the meaning of 'dishonest' in the context of a claim for dishonest assistance in a breach of trust.

    • Word count: 3363
  20. tort law problem

    However from Byrne v Deane7, the decision as to whether a statement would be defamatory will reflect what a judge believes an ordinary person would understand by the words used8. For the claimant to prove the statement refers to them they must simply show that they are named and other information is included so the identity of the person is clear9. It will suffice that those who know the claimant believe that statement refers to them10. This comes from Cassidy v Daily Mirror Newspaper Ltd11.

    • Word count: 3602
  21. To what extent should the law concerning the recovery of damages in negligence for psychiatric illness be liberalized

    The law on compensation for psychiatric illness unaccompanied by other injury has traditionally used an analysis, which considers claimants as either "primary victims" or "secondary victims". This dichotomy was emerged from the case of Page4. In this case House of Lords held that the plaintiff was a primary victim because he was directly involved in the accident. Generally, primary victims experience shock in respect of their own safety; they are participants in the event. Secondary victims experience shock in respect of the safety of others; they are passive and unwilling witnesses of injury caused to others by the negligent defendant.

    • Word count: 3025
  22. Personal Injury.

    The defendant was liable for assault. The threat must put the claimant in reasonable apprehension of an immediate battery and so if the defendat is clearly unable to carry out the threat, there is no assault. R v St George (1840) By pointing a gun at the claimant, which, unknown to the claimant, is unloaded, would produce a reasonable apprehension of battery and therefore constitute assault, even though the defendat could not carry out the threat to shoot. Where the plaintiff has no reasonable belief that the defendant has the intention or the ability to carry out the threat immediately, no assault is committed.

    • Word count: 3903
  23. Employer's Liability.

    Henderson v Wakefield Shirt Co Ltd [1997] It is not the duty of the employer to go so far as to offer a wholly different job to avoid a claim in negligence. Johnstone v Bloomsbury Health Authority [1991] Requiring an employer to work such long hours that his health is reasonably foreseeably affected by stress and sleep deprivation may constitute a breach of the employer's duty. The standard of care is high. The employer owes a duty to take such precaution for the safety his employees as would be taken by a reasonably prudent employer in the same circumstances.

    • Word count: 3359
  24. Principles of Delict

    However, assault is also a delict and the injured victim, sue his attacker for damages in a separate action in a civil court. To make matters more confusing, it is possible for a compensation order to be made by criminal court. However, in practice, this is only done where the injuries are minor. Finally, if the victim of a crime cannot find the wrongdoer or if the wrongdoer has no assets and is not worth suing, a claim may be made under the Criminal Injuries Compensation Scheme The General principles of delictual Liability The law does not provide a remedy and compensation for all those who suffer some misfortune or loss.

    • Word count: 14433
  25. To succeed in a negligence action in tort, the claimant must prove three things

    If Henry was found to be driving negligently, the neighbour test can be applied and it can be found using the above criteria first set out in this question, using the above it is clear that he owed the children a duty of care. Although the issue here is not whether the children can sue, it is Mrs N and Anthony and whether they can sue for Nervous Shock? Nervous shock is a psychiatric injury, which has to be proved.

    • Word count: 6078

Conclusion analysis

Good conclusions usually refer back to the question or title and address it directly - for example by using key words from the title.
How well do you think these conclusions address the title or question? Answering these questions should help you find out.

  1. Do they use key words from the title or question?
  2. Do they answer the question directly?
  3. Can you work out the question or title just by reading the conclusion?
  • This essay will obtain and discuss the legal obligations and regulations of the company, and whether the company adhered to these regulations or where the company did not meet set health and safety (H&S) guidelines.

    "Conclusion This essay has shown that a many number of acts and regulations have been broken. With more information on the case the court would either find the company and / or guilty of not meeting the said regulations set out in the acts. The company could be made liable through the health and Safety executive for criminal and / or the member for civil action for the injuries sustained. If the company was made liable for the act of the employee (under vicarious liability) they would be able to claim from that such other contribution which could be found by the court to be just and equitable having regarded the extent of the employee's responsibility for the damage in question, from the Civil Liability (Contribution) Act, 1978 sections 1&2. (Goodman, 1988). This means the company could claim that the employee knew how to do his job properly and he ignored proper procedures, which then led to the accident taking place. So if the court agreed with this claim the employee would be required to pay the company the money they had to pay out to the injured member."

  • Identify the key legal issues arising from work-related stress complaints by employees and evaluate the approach of the common law for such complaints. Illustrate your answer with recent case law

    "In conclusion, the House of Lords has subsequently had the opportunity to review the principles laid down in Hatton. Following the Court of Appeal applied the Hatton criteria to individual cases in joined appeals, Hartman v South Essex Mental Health & Community Care NHS Trust, Best v Staffordshire University; Wheeldon v HSBC Bank Ltd; Green v Grimsby & Scunthorpe Newspapers Ltd; Moore v Welwyn Components Ltd; Melville v The Home Office29. The Court of Appeal has more recently re-emphasised the point that a successful claimant must show that it was reasonably foreseeable that (s)he would suffer a psychiatric illness as a result of the employer's breach of duty, not just that he would suffer from stress. Safety has always appeared to be a major preoccupation of the common law in the context of employment. Statutory obligations to the employee also demonstrate a clear concern with safety, but the health and general welfare of the employee are also elements of the duty. It is significant that the common law is beginning to adopt a similarly broad attitude towards the employee's well being30"

  • Discuss in what circumstances the action for breach of statutory duty is available. Do you agree that it is difficult to identify any intelligible principles in this area?

    "It has become manifestly clear to myself that this area of law [breach of statutory duty] poses, all be it to different degrees, problems to academics and students alike, and maybe to a certain extent the courts, in not so much understanding but codifying the, if any, fundamental principles related to it. Like many areas of law, where there is a rule or presumption, there is an exception to that rule or presumption and breach of statutory duty is no different, an in my opinion provides a clear example of where there is a rule, there is an exception. This apparent lack of intelligible principles carries with it a great degree of uncertainty for those contemplating raising an action for breach of statutory duty due to the fact that a lot of the time it is the discretion of the court that will ultimately decide the fate of the case."

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