Legal Obligations
Resit Coursework. Obligations II. Having established that the defendant owes the plaintiff a duty of care (and in this case it is assumed that this has been established), it will next be necessary for the courts to decide whether the defendant has breached that duty. This first involves an assessment by the court of how, in the circumstances, the defendant ought to have behaved; what standard of care should he have exercised. This standard is that of the ordinary and reasonable citizen and not that of the defendant himself: an especially careful defendant will not be held liable because he fell short of his own high standards, however, a defendant whose personal conception of what is reasonable fails to match that of the court will have no defence based on his belief that he acted carefully. Although the concept of the reasonable man is well developed and accepted in tort law it is nevertheless a general and sweeping statement. Sir Alan Herbert said: 'the reasonable man is .. devoid of any human weakness, with not one single saving vice' Although this is not quite true, it is difficult for the courts to create a reasonable, fictional man and I believe it important for them to take into account social and moral change when comparing the defendant to this fiction. In practice 'reasonable care' can be manipulated to produce standards ranging from the very low to the
EVALUATING PSYCHIATRIC HARM
Evaluating Pshciatric harm Psychiatric harm is a recognised psychiatric illness, resulting from an incident and it must have long term effects. Mere grief, fright and sorrow are insuffiecient. Historically the law did not extend to claims brought purely in respect of psychiatric harm. This was due to it being difficult to diagnose, and may lead to victims faking the illness and bring ficticious claims. There was also the fear of opening the floodgates - if too many people could fake the illness, then there would be no end of claims in the tort. In white v cc of south Yorkshire, Lord Steyn commented that the law on psychiatric harm is a patchwork quilt of distinctions which are hard to justify. The mechanisms developed by the judiciary to prevent the number of potential claims in psychiatric harm result in injustice. The first problem that lies with it is the inconsistent development. The law on psychiatric harm has developed drastically over the past 100 years, with the knowledge of illnesses like it uncommon at the turn of the 20th century, and at the end of the 20th century they are commonly known to exist. However, before the 1980s, there was a strict course of being able to gain compensation for psychiatric harm. However, when the Anns v Merton test was introduced in the 1980's, this opened the floodgates wide open for claims in psychiatric harm. This was because
Generally, in a criminal case, the prosecution must establish a guilty intention, as well as a guilty act. Explain and illustrate these two elements of a crime.
Paper 1, June 1998, Question 9 Trina Soon Generally, in a criminal case, the prosecution must establish a guilty intention, as well as a guilty act. Explain and illustrate these two elements of a crime. (25m) A person cannot ordinarily be found guilty of a serious criminal offence unless two elements are present: the actus reus (guilty act) and the mens rea (guilty mind). A wrongful act on its own therefore cannot usually be criminal unless the wrongful state of mind required for that offence is present. Actus reus is the essential component of a crime that must be proved to secure a conviction, and includes any unlawful act or unlawful omission. Generally, one is not liable by omission, however there are several exceptions, when there is a failure to act under a duty to act. Duty to act can arise from a contract, as in R v. Pittwood, where a railway gatekeeper failed to uphold his duty to shut the gate, resulting in a person's death. Where there is a voluntary assumption of care between the defendant and the victim, a duty to act may also arise. In R v. Instan and R v. Stone & Dobinson, the respective victims under the defendants' care died as a result of defendants' failure to uphold their duties. In Instan, the defendant's aunt died due to mistreatment and neglect, making the defendant liable for failing to act under a duty to act. Duties may also arise from
Non-fatal Offences Against the Person.
A-Level Law Homework 4 Non-fatal Offences Against the Person (a) Discuss Alice's criminal liability in connection with the incidents involving Briony and Chris. (Your answer should also discuss any relevant defences.) Possible charges, which Alice could be charged with, include offences contrary to sections 18, 20 and 47 under the offences against the person act 1861. The most serious offence is s18 causing GBH with intent; the offence is broken into two parts; The mens rea, which is the defendant's guilty state of mind, which in this offence is an intention to cause GBH and the actus reus, which is the guilty act. The actus reus of the offence is the GBH, which means serious bodily injury has occurred, (R V SAUNDERS) and whether this was caused directly or indirectly to the victim. (R V MARTIN). In Alice's case she has committed the actus reus by causing deep cuts to Chris's fingers but she didn't intend to cause GBH with intent so there is no prove of mens rea. The next possible offence is s20 maliciously wounding or inflicting GBH; the offence is then looked at in two parts. The actus reus of the offence is the GBH caused to the victim, which is the deep cuts to the fingers, caused either directly or indirectly. The mens rea is the word maliciously, which means intention to cause some harm. Therefore Alice needed to have intentionally or subjectively recklessly
NEGLIGENCE & DUTY OF CARE - The leading case in Negligence is the case of Donoghue v Stevenson (1932)
The leading case in Negligence is the case of Donoghue v Stevenson (1932) This case explains that, Mrs Donoghue and her friend went to a cafe in Paisley. At the cafe, Mrs Donoghues' friend bought her a drink which was a ginger beer float consisting of ginger beer that was in an opaque bottle. After Mrs Donoghue drank out of the drink in a beer cup, her friend topped up the drink, and then they found in the ginger beer bottle a decomposed remains of a snail. Mrs Donoghue claimed that the memories of seeing the snail in the ginger beer she had already drunk made her ill. Mrs Donoghue could not sue the retailer of the ginger beer for breach of contract because she was not the one that bought the beer herself this is because the contract had been made between the retailer and her friend. She therefore sued against the manufacturer in tort as it was not worth suing the retailer who had only sold the drink to them. The neighbour test This was brought about by Lord Atkins in the case of Donoghue v Stevenson (1932). Lord Atkins stated that there must be some general conception of relations giving rise to a duty of care. The rule was that a person must love his neighbour which became in law that you must not injure you neighbour. The question was that "who then in law is my neighbour? The answer was that anyone who is closely and directly affected by your act, to reasonably have
Consider the meaning and importance of fault-based liability in English law
Consider the meaning and importance of fault-based liability in English law Fault is regarded as blame, or responsibility for doing something wrong. The concept of fault is integral to the English legal system when it comes to deciding guilt of liability. In fact, in many areas of law if fault could not be assigned, the system would fall apart as liability can only be found if fault is established first. Fault is particularly important in cases which require mens rea. In these cases it will have to be proven that a certain state of mind was present in the defendant. In criminal law the requirement that mens rea or a guilty mind be established amounts to saying that criminal liability is imposed on blameworthy activity. This close connection between fault and mens rea results in punishment being based on the degree of moral blameworthiness that the defendant is believed to have possessed. The fact that this degree of blameworthiness not only determines whether the defendant will simply be found guilty or not guilty, but is concerned with the punishment, deterrence and rehabilitation of individuals whose conduct is considered by the law to be not only wrongs against other individuals, but also against society as a whole, suggests fault is clearly an essential element. To determine fault the person in question must understand the nature of their actions, be able to exercise
Contributory negligence and volenti non fit injuria are very similar in nature and effect. Analyse these defences in tort and explain the extent to which you agree with this statement.
Contributory negligence and volenti non fit injuria are very similar in nature and effect. Analyse these defences in tort and explain the extent to which you agree with this statement. The common law recognises the need for defendants to have defences such as contributory negligent and volenti when deems reasonable to impose them. Both defences are similar in nature and effect. Contributory Negligent refers to the claimant being party responsible for their actions and thus contributes to their harm. Volenti Non Fit Injuria, on the other hand, is defined as volenti(willingly) injuria( suffer harm) non fit( that is not actionable). In both defences, the claimant have played a part in causing harm to themselves, and ought to sustain some responsibility- rather than allowing the defendant to bear the whole liability for what in essence was not wholly their fault. Their similarities are great as in they lessen the defendant’s liability, by acting as defences the defendants can raise. zl For contributory negligence to be raised, it must prove that the claimant had contributed to their harm. An example is the case of Baker v Willoughby where the claimant was involved in a car accident that was a result of the defendant’s negligence. Later the claimant was shot in the same leg by a robber. However the defendant successfully claimed for contributory negligence, lessening the
Occupiers Liability Act Case Study - Consider the theme parks potential liability in tort for the loss sustained by Pierre and Luc in the situation above. How successful might any defences be?
Pierre and Danielle take their two boys, Luc (7 years old) and Jean (11 years old), to the Fawlty Towers World of Adventure for the day. As they pay and enter the theme park, there are notices displayed which state that visitors enter at their own risk. Pierre cuts his arm badly on the sharp edge of the metal seat on the Mad Maxx ride. Later in the afternoon, whilst the family is watching a parade through the park, Luc runs off and, ignoring warning signs, goes through a gate next to the Raging Rapids log flume ride and is injured by the machinery that operates the ride. Consider the theme park’s potential liability in tort for the loss sustained by Pierre and Luc in the situation above. How successful might any defences be? Occupiers Liability is where a person has reasonable control over the premise and hence owes a duty of care to the visitors under the OLA 1957. The common duty of care is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. In this case, the theme park is the occupier as they have sufficient degree of control over the premise -the Fawlty Towers World of Adventure. As they are paying customers, they are contractual visitors to whom the common duty of care is owed. In the
The case of Spartan Steel v Martin (1972 All ER 557) illustrates that the distinction between pure economic loss and other kinds of loss can be a very fine one and one that is difficult to justify. (Elliott & Quinn: Tort Law, 2003). With reference to case law, critically assess the extent to which this statement is true of the tort of negligence.
The case of Spartan Steel v Martin (1972 All ER 557) illustrates that the distinction between pure economic loss and other kinds of loss can be a very fine one – and one that is difficult to justify. (Elliott & Quinn: Tort Law, 2003). With reference to case law, critically assess the extent to which this statement is true of the tort of negligence. Negligence concerns falling under a legal duty to take care which causes harm to the claimant. It protects against 3 types of harm which is physical injury, damage to property and economic loss. For a claim in negligence to succeed, 3 elements must be proved; there must be a duty of care owed, a breach of that duty and damage done to the claimant. The difference between pure economic loss and other losses can be a very fine one. However this can be illustrated in the case of Spartan Steel v Martin. In this case, the defendant had negligently cut a wire which lead to a power cut that lasted for 14 hours. The claimant had to shut down the factory which led them to incur losses. They sued the defendant for the losses incurred . Damage to the metal which is in the furnace at the time of the power cut 2. Loss of profit on that metal 3. Loss of profit on the metal that would have been produced in the furnace for the 14 hours lost The courts held that the first two was economic loss and was recoverable, whereas
Exclusion Clauses Scenario Question -an exclusion clause said ice skaters skate at their own risk.
4. Professional Ice Skaters train REGULARLY . Negligence personal injury. Exclusion clause said not responsible for loss or injury sustained by users of the rink. On the ticket office and also on the back of the ticket. Was owners liable for skater’s lost income? It is obvious that the negligence of the cleaners have led to the injuries suffered by Tatiana and Igor. The main issue is whether the owners can limit or restrict their liabilities by relying on the exclusion clause displayed. It is clear that the cleaners have been negligent by leaving the machinery on ice, hence the owners ought to be vicariously liable for their acts. An exclusion clause Is a clause that aims to limit their liability. In this case, the exclusion clause aims to limit negligent performance, when a duty of care is owed by the owners under Occupier’s Liability Act 1957. For the exclusion clause to take effect it must have been incorporated. To incorporate an exclusion clause, it must be incorporated before the contract has concluded. (Olley v Malborough Court Hotel) Any clause introduced after the contract has been concluded would not be incorporated. Hence in this case, the Exclusion clause was displayed next to the office window, and was introduced before the skaters had bought the ticket, making it part of the contract. It must also be in a place where there is a reasonable notice. It was
