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University Degree: Tort Law
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The Law Commission Consultation Paper No 137, Liability for Psychiatric Illness 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.
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These principles were first pointed out within the case Donoghue v Stevenson. Within that case, Lord Atkins recognized the test of how to prove that a duty of care was owed. He stated, "Within law you must not injury your neighbour". This statement led to the question of who in law is our neighbour? Lord Atkin quickly replied by declaring, "Within law your neighbour is the person who is closely and directly affected by the act. You must take reasonable care to avoid acts or omissions, which you can reasonably foresee as causing any injury to your neighbour".
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Consider the relationship between the torts of private nuisance and negligence and in doing so answer both the following points: (a) To what extent, if at all, have the distinctions between private nuisance and negligence been eroded by case-law developm
It follows that nuisance is a branch of the law of negligence. It merely adds a list to the duties of care.'3 Factors such as the facts in certain cases where you can apply both negligence and nuisance such as have resulted in the confusion of separating the torts into two distinct categories. One of the considerations which I will be discussing is the notion of reasonableness when it comes to questioning whether or not a defendant is liable cases of private nuisance and negligence.
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At the same time it should be noted that not all breaches of statutory duties will lead to damages being awarded to the claimant. To try and shed light on the intentions behind a statute the courts adopted the construction approach as seen in the case of Cutler v. Wandsworth Stadium Ltd2, this is whereby the courts held that the Betting and Lotteries Act 1934 was not of benefit to individual bookmakers but to the public as a whole. Another approach taken by the courts is the presumptions approach laid out by Lord Diplock in the case of Lonrho Ltd v.
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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.
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Although it is not directly said in Neil's interviews which social class he came from, it might be assumed from his accent and manner that he was born into an upper-middle class family. However, the fact that he spent most of his childhood growing up in less well-to-do suburbs suggests that his parents were possibly from a lower income group, in stark contrast to Bruce, who, from his dress to the political views he articulated at just age 7, is undoubtedly from a family at the higher end of the rigid British social class system.
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Negligence Case. The victims in this problem may have a claim in tort of negligence, where a duty of care was established by Lord Atkin based on the neighbour principle in Donoghue v Stevenson.
There must be reasonable foreseeability, (ii) a close and direct relationship of 'proximity' between the parties and (iii) it must be fair, just and reasonable to impose liability." It is reasonably foreseeable that if Martin does not pay proper attention to the road, someone will injure. Secondly, Lin was directly affected by Martin's improper conduct caused him broken arms and legs during the accident. Finally, it is fair, just and reasonable to impose liability to Martin. In addition, this policy will encourage Martin and other drivers to be more careful when driving.
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Even after judicial attempts to clarify the principles governing liability for psychiatric harmloose ends remain. (Street on Torts) Discuss.
Whereas, courts could attempt to clarify the principles governing liability for psychiatric claim by simply stressing policy considerations as their overriding principle in determining psychiatric injury claims. For the purposes of this essay, 'judicial attempts to clarify the principles...' will be taken to be the judicial attempts in making the principles more coherent and morally defensible. Psychiatric Injury - Duty of Care The general tests in establishing whether the defendant owe the claimant a duty of care for psychiatric injury is the classification between 'primary victims' and 'secondary victims' as coined by Lord Oliver in Alcock v Chief Constable of South Yorkshire5.
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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 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.
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The plaintiff had a duty to see the course was as safe as "reasonable care and skill could make it "(4) however there was an appeal from McCardie J, which was then allowed as it was seen that no reasonable person can guard from every possible danger. The man on the Clapham Omnibus cannot be compared to a professional person as he does not uphold any professional knowledge or skills, the term professional can connote anyone who gives specialist advice or service.
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?f th? tw? ?t?tut?? - i.?. th? 1957 ?ct ?nd th? 1984 ?ct. Di?cu??i?n Th? imp?rt?nt thing h?r? t? gr??p i? th? n?w inn?v?ti?n intr?duc?d t? thi? ?r?? ?f l?w by th? ?t?tut?? ?? ?pp???d t? th? p??iti?n ?t c?mm?n l?w. It i? cl??r with?ut ?ny c?vil th?t ?ccupi?r? ?lw?y? ?w? th?ir l?wful vi?it?r? ? duty t? t?k? c?r?, ?nd ?r? th?r?f?r? li?bl? f?r c?u?ing th?m phy?ic?l injury by n?glig?nc?. Th? f?ct i? th?t li?bility c?n b? imp???d ?n ?n ?ccupi?r ?ith?r f?r p??itiv? n?glig?nc? which i? c?ll?d mi?f????nc? ?r f?r n?g?tiv? n?glig?nc?, which i? c?ll?d n?n-f????nc? ?r ?mi??i?n (Gay et al, 1987, pp 253-62). N?t?, h?w?v?r, th?t li?bility t? unl?wful vi?it?r? ?r tr??p????r? i? g?v?rn?d by th? ?ccupi?r?'
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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
Judges have begun to expand the boundaries of the employer's duties towards the employee's health and safety. These developments apply in both a general sense and in relation to more specific injuries; such as extreme pressures of work and excessive workloads have led to the introduction of a general duty to protect the health and safety of the employee3. The case of Johnstone v Bloomsbury Health Authority4 is an example of were a junior doctor was expected as a matter of course to work up to 48 hours overtime per week, the excessive amount working hours had damaged his general mental health.
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These align up to the elements of negligence and so the Claimant could bring up charges against Defendant 1 under negligence. Defence Even though there are no special provisions on account of liability upon children on the grounds of contributory negligence, Lord Denning concluded in the case of Gough v Thorne, A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety: and then he or she is only to be found guilty if blame should be
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- 2 - Spigelman found the plaintiff was owed a duty to provide proper care with respect to diagnosis and, subject to consent, treatment. But contended the appellants, agreed that the duty did not extend to encompass the exercise the statutory power to detain him. Santow JA did not find in the same manner, as per the Mental Health Act4 (MHA) the harm suffered during forensic detention was outside the purpose of the MHA5. This is specific to sections 9 and 10 which relate to preventing serious harm to the plaintiff or others, but not non-physical harm, in the case of the plaintiff.
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Adams J the trial judge originally awarded damages of $225,000 general damages and $113,300 for economic loss. - 3 - Procedural History This case began in Supreme Court. Grounds for Appeal The appellants believe the financial benefit the plaintiff received was excessive. Summary of courts analysis Spigelman CJ, Sheller and Santow JJA agree that Dr Nazarian failed to correctly assess and detain the plaintiff as per the Mental Health Act 1990 (NSW) (MHA). The MHA2 specifies in s4 the objects of the Act in relation to the care, treatment and control of mentally ill and mentally disordered persons are to provide for and facilitate the care, treatment and control of those persons through community care facilities and hospital facilities.
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So, I want to include brief information about historical development of tort. In the early common law, crimes and torts were not differentiated. All wrongs were classified into felonies (criminal offence) and those that were not felonies. There was also a special group of offences referred as "trespasses", within which misdemeanor and torts were mixed and it was not possible to distinguish them. The word "trespass" itself was used to mean "wrong" and has dealt mostly with civil cases. It developed during XIII century and in the end of that age was supplemented by an action of trespass "on the case" to accommodate wrongful conduct which was neither direct not forcible.
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Investigation into the law of Tort. The basis of Tort in the legal system is to aid the general public and provide them with what could be seen as some form of security from various detriments in their life such as protection of property or reputation for
The way that Tort achieves this is by providing compensation and or retribution for the injuries sustained. Tort also aims to be a deterrent to prevent loss for the future. As mentioned before there are various types of Tort law, all with separate uses, it in-fact overlaps with other substantial areas of law such as that of Contract law and Criminal which raise the question is there really a need for it in our legal system or does it just complicate matters? To clarify, there are other respected sources which offer their views on what Tort actually is, such as Lord Denning, a controversial character within the legal system.
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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
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3 It is not just the victim and bully that are affected but there is the distraction of the whole class which may lead to cases of negligence due to the education or lack there of that the student receives. It is difficult to make a judgment as to when someone should be denied the opportunity to an education as a school cannot easily expel a student or take a student out of a class however there needs to be measures which balance the rights of the majority not to be bullied and to receive a proper education against the rights of the bully to be educated.
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In the neighbourhood principle, to ask the question of whether C owes D a duty of care. The courts then hold the defendant liable to whether C ought to take care to look after D's interest.3 In the neighbourhood principle, the neighbour is defined as, "Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."4 NEGLIGENCE The law of negligence can be broadly argued in the context of our daily life activities to areas such as supplying and providing of services or tasks, as a manufacturer to consumer, employer to employee, teacher to student, and much more.
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"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 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.
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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?
However, this test was limited in that there was the potential for a broad range of liability. The first part of the test which focuses on "proximity" leaves the defendant open to the possibility of an extensive number of claims - as many consequences of a negligent act could be argued to be foreseeable and the defendant could potentially end up owing a duty to limitless numbers of claimants. In answer to this an improved 3-stage test was put forward by Lord Bridge and replaced the 2-stage test and is now a method for deciding when a duty is owed by a defendant to a claimant.
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Here, the already established manufacturer, consumer relationship applies. Though, Lord Aitkin then formulated the "neighbour principle" to limit the scope of future claims on the grounds of what the courts regard as acceptable. Only when this principle could be applied, could there be a duty of care. However, various legal journals suggest that Donoghue v Stevenson was fabricated slightly by the courts in order to establish the duty of care principle in itself. The fact that the case was ultimately settled out of court and the facts were never established in a court of law supports the idea.
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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.
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