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University Degree: Tort Law
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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.
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Currently, a need in revaluation of the principles of tort law appeared. Mainly, it is connected with the new view on the notion of guilt. Several works address the issue of guiltiness and the guiltiness of victim
The paper will also address some fundamental works and different points of view on the problem. Contributory Negligence In order to address the issue properly it is worthwhile examining a very simple situation that is rather common in our everyday life: Peter, a pedestrian, negligently crosses a street without carefully checking the vehicular traffic. Doris, a motorist, negligently speeds and strikes Peter, causing him injuries. In Anglo-American jurisdictions, Peter's recovery against Doris will likely be reduced, if not eliminated, under the doctrine of contributory (or comparative) negligence. And it might seem obvious that a plaintiff who is 'at fault' should not fully recover against a tortious defendant.
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The law allows people to claim compensation in the civil courts if they themselves have been injured, their reputation damaged or property harmed.
In order for a negligence claim to succeed three tests must be satisfied: 1. that the defendant owed them a duty of care; 2. that the defendant was in breach of that duty; and 3. that the claimant suffered damage caused by the breach of duty, which was not too remote. The modern law of negligence is based upon the decision in Donoghue v. Stevenson . Mrs Donoghue was unable to sue in contract for the harm she suffered after consuming ginger beer with a snail in it because she had not bought the drink from the manufacturer but from a retailer and was therefore not able to bring an action in contract.
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Vicarious Liability is a type of strict liability where a person is held to be responsible for torts committed by someone else even though he himself is not at fault
Starting from the first policy argument regarding the needs of tort for compensation, it can be seen that the doctrine of vicarious liability goes against the moral objective of tort. The law of Tort is based on the idea that the wrongdoer must be held liable for his torts and not anyone else. This doctrine makes employers liable for torts that they themselves have not committed. It should be noted though, that in a justice society, innocent victims need to be compensated and that the law of tort is there to ensure this.
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The English law may hold a person responsible for the misconduct of another, even though he himself is not at fault (an instance of strict liability
This need probably arises from the departure from the general principles of law of tort that (i)a person should only be held liable for his own acts and omissions; and (ii)where he has been at fault. In other words, while imposing vicarious liability the employer is made to pay even though he is totally free from blame. There are some plausible explanations to justify this departure from these two leading principles of the law of tort. Regarding the first principle, it is suggested that a person is not liable for his acts or omissions but he is liable to pay
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In the case of Don, the pedestrian would have lived had it not been for Don's actions. Don's act does not have to be the sole or even the main cause, provided it is the substantial and operating cause of death. This is causation in law and comes from Smith 1959 where the defendant stabbed a soldier with a bayonet during a fight in barracks. The victim's friend took him to the first aid post, but on the way, the soldier was dropped twice. At the medical post the officer was busy and the victim died about two hours after the stabbing.
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The same rule applies to professionals. If an ordinary person commits an offence, it would be unsatisfactory for them to escape liability by arguing that he had done his incompetent best. However Professionals can argue that they had simply been following Standard of practice, even though what was done wasn't in the best interest of their client. Carelessness isn't measured by asking if a person had fallen below his standard of conduct, but that of the reasonable person. Sometimes this objective approach can provide a tension between the desire to compensate the plaintiff and the desire to limit liability to situations of moral fault.
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I have been asked to advise the Crown Prosecution Service on the appropriate homicide charges to bring against Fred and Mike.
With respect to causation, it must be proven that the defendant 'caused' the victims' death. For this two matters must be considered. Did the defendant 'in fact' cause the victims' death? If so, can he be held to have caused it in law? As regards causation in fact, this can be resolved by the application of the "but for" test. Re R v White6, where one must ask, 'but for' the defendants act would the actual result have occurred and if not, causation in fact must be disproved and the Actus Reus for murder can not be satisfied.
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To successfully pursue a claim in the Tort of negligence there are three elements that need to be fulfilled. These are a legal duty of care, a breach of that duty and damage suffered as a result of that breach
It was held in this case that there could be a remedy available in the law of tort. The manufacturer owed a legal duty of care to the ultimate consumer of his product. From this case the neighbour principle was established. In his judgment Lord Atkin stated: ''You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.''3 He also went on to define 'neighbour' in the legal sense. ''...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 into question.''4 This principle established negligence as an independent tort.
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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.
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Investigating how the concentration of hydrochloric acid affects the speed of the reaction with marble chips.
v Heller & Partners2 must be satisfied. The House of Lords stated that a 'special relationship' must exist between the claimant and defendant so that the claimant placed reasonable reliance, which was known, or ought to have been known to the defendant, on the statement. Lord Morris stated that the defendant needed some special expertise in order for there to be a special relationship- the defendant needs to be in a better position then the claimants to know the facts.
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For Criminal Liability, the actus reus and mens rea of the same offence must always coincide in point of time.
The surgeon performed an examination upon the carcass at the butcher's request and certified it edible. However, the surgeon had performed the examination negligently meaning that the meat in the first place was completely inedible"3. The butcher was convicted of the strict liability offence of exposing the meat for sale. The surgeon's conviction however, was quashed, as he did no know the meat was inedible. For absolute liability to occur, the offence requires no mens rea and the defendant's actus reus need not be voluntary, which only contemplates in the rarest of situations.
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This doesn't come as a surprise as in most cases, only economic loss is suffered. I shall be exploring the above information in more detail in order to give a relevant and accurate discussion about the liability of negligent misstatements causing pure economic loss. The main avenue of guidelines for liability for pure economic loss resulting from misstatements began from the case of Derry v Peek 1888 the usefulness of this tort is in the fact that the court relied upon actual proof of fraud rather than 'constructive fraud or neglect.
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When Angela's group of children started to cross the bridge that they had built, it collapsed, injuring Delia, aged 10. Angela had told the children the bridge was safe to use. (a) Explaining the relevant rules of law, decide whether Beth owed a duty of care to Delia in this situation.
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A report by The Crown Prosecution Service on the incident taken place on the M602 motorway and Regent's road, Salford. At 7.45AM, on the 20th May 2004, David Smith was found unconscious
The cards found o David Smith are the following: * A mini bank statement printed out in the 19/05/2004 * The University of Salford's student union card. * An invitation card to a party which was on the 19th May 2004 from 9.30pm. * A dentist appointment for the 20th May 2004 at 10.15am. PROCEDURE: I had to find answers to the questions that were constantly coming up in my head; how the accident happened, was it a case of an attempted murder, if yes then who did it and what was the motive behind it.
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Discuss whether Lucy is liable in negligence to Kim and John, and discuss whether Lucy can claim any compensation in negligence or in deceit from King, giving full legal reasons for your answers.
John suffers head injuries and is off work for six months. News of this incident spreads through the local district and as a result Lucy's reservations fall by half. Lucy immediately arranges for all of the shutters to be removed and replaced with heavy duty shutters at great cost. Kim and John have each told Lucy they will sue her and King for their medical expenses and lost wages. Discuss whether Lucy is liable in negligence to Kim and John, and discuss whether Lucy can claim any compensation in negligence or in deceit from King, giving full legal reasons for your answers.
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This scenario is covered by three heads of law;the Landlords and Tenant Act (LTA), Occupiers Liability Act 1957 (OLA) and Negligence.
(1) Ensures that there is a statutory negligence action for any breaches thus being the "common duty of care". This common duty of care is owed to all of an occupiers visitors except in so far as he is free to and does extend, restrict modify and exclude his duty to any visitors or visitors by agreement or otherwise. The common duty of care is only required to be in accordance with the purpose for which Charles entered the premises; section 2 (2) OLA 1957, therefore the premises must be in a adequate state in order for Charles to make his insurance proposal.
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Advise the Parties as to their criminal liability, adding critical comment where you think the law is unsatisfactory.
The mens rea of such a defence requires that the act be done 'maliciously' and with 'intent'. It is likely that Charles would fall under section 183 rather than section 20 of the act, which does not require intent. One could argue that by smashing a bottle over someone's head, harm was indeed intended. With such a case, it is first important that to note that the harm was not actually directed at Bessie but Albert. Nevertheless due to the common law principle of Transferred Malice, it is apparent that if the intent to harm Albert is found, and the act occurred i.e. Bessie's injuries, both elements would have been formed, and so create a whole offence.
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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.
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Referring to the case Lister v Romford Ice and Cold Storage Co (1957) AC 555 then if Stephen & Lesley's case were to be successful in claiming from the council for loss sustained, the council could then bring an action against Jonathan to recover the sum paid to Stephen and Lesley. The original position of Scots Law was that there could only be liability for negligent misstatement, which caused financial loss, if the parties were in a contractual relationship. Stephen and Lesley were clearly in contract (mortgage)
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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.
has to prove that he was owed a duty of care and that this duty of care was breached. Legal Obligations of Company The member was owed a duty of care by the company under the Health And Safety At Work Act 1974 (HASAWA). In this act section 3 details the duties of employers to persons other than employees (in this case the member). Section 3 (1) of this act states that the company should conduct their business in such a way that does not put members of the public at risk. Section 7 (1) states that employees should take reasonable care of the health and safety of that of others who may be affected by their acts or emissions.
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She thought also that she could perhaps climb out. Having climbed onto the toilet, putting one foot on the toilet roll holder and hanging on to a pipe she soon realised she could not. On climbing down, she allowed her weight to fall on the toilet roll holder, which turned round causing her to slip and fall. She was injured in a way described in the case as "not trivial...(but) not serious".1 In the claimant's action for damages against the defendants, they were found to be negligent.
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Henderson v Wakefield Shirt Co Ltd  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  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.
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Would A No Fault Regime be Better than the Current Negligence-Based System of Compensating Victims of Medical Accidents?
This is where the sum of the expected costs of accidents and the costs of avoiding accidents is miminised. This is illustrated on figure 1 below as 'X*', the minimum point of the curve E(SC), which is obtained by adding the other two curves together. The role of the courts is to make the socially optimal level of care a legal minimum, and hence if a doctor takes care at a level of 'X*' or above and an accident occurs then they are not liable.
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foreseeability, (b) proximity, and (c) the fair, just and reasonableness of recognising such a duty. Lord Steyn reaffirmed these rules in Marc Rich and Co AG v Bishop Rock Marine Co Ltd. Regarding foreseeability, it must be decided whether it was foreseeable at the time of the relevant conduct (awarding of incorrect grades thus impeding their educational progress) that it would, if done carelessly, be likely to cause harm to the injured persons of the kind sustained. It can be assumed that the actions of the PEB would easily distress any of their candidates as exam periods are stressful times and added difficulties could prove too much for some people.
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