Tort law assignment. Brian fell against the standard of care a reasonable man would take as he advised John to buy the shares to be on a winner
Tort law assignment Advise John as to claims that he may have against Brian in tort. For John to make a claim against Brian in tort the following three elements must be proved: whether Brian owes a duty of care to John, if that duty was breached and if the breach caused the damage. Liability for negligent misstatements causing pure economic loss have the usual requirements of duty, breach and damages but special treatment is necessary as people are less careful in what they say than in what they do on social and informal occasions. Lord Pierce in Hedley Byrne stated: “word are more volatile than deeds, they travel faster and are used without being expended” To establish the difference between ‘pure economic loss’ and economic loss which is consequent upon physical damage to property. This was defined in Spartan Steel v Martin 1973, where the loss was foreseeable but Lord Denning held a line must be drawn, and that the loss was better borne by the insures than by the defendants alone. The Misrepresentation Act 1967 states where there is a fiduciary relationship (a person to whom property or power is entrusted for the benefit of another) for example between a solicitor and a client liability arises here in contract and tort. There is no need to prove a duty of care exists. Brian who is a part qualified accountant advised John about the shares, but there was no
Criminal liability is generally based on fault with the prosecution having to prove both actus reus and mens rea. Some criminal offences are crimes of strict liability. Briefly explain the meaning of these 3 terms.
Criminal liability is generally based on fault with the prosecution having to prove both actus reus and mens rea. Some criminal offences are crimes of strict liability. Briefly explain the meaning of these 3 terms. The actus reus is the physical element of a crime. The phrase itself is loosely translated as `the guilty act'. The actus reus however does not always have to be some one committing an act it could also be the failure to act (an omission). The actus reus of a crime may also be committed when a prohibited state of affairs exists. In some crimes it is also necessary to show more than an act or failure to act. What you also need to show is that specific consequences of an act occurred before the actus reus is proven. An example of the actus for a state of affairs which is when a defendant may commit the actus reus simply by being in a particular place when this state of affairs has been declared to be wrong - Larsonnneur (1993) and Winzar v Chief constable of Kent (1983) are 2 examples of this. The actus reus must be voluntary, it must have been carried out by some one who has control over his actions. However if they do not have control over their actions they have not committed the actus reus of a crime and so cannot be convicted. An example of this is if some one passes out whilst driving and causes an accident. The actus reus of omissions is a
Murder, manslaughter, assaults, sexual offences and defences.
Murder, Manslaughter, Assaults, Sexual Offences and Defences (1678 words). Section 18 (wounding or causing grievous bodily harm with intent) The Actus Reus of Section 18 Of The OAPA 1861. S.18 OAPA penalises 'whosoever shall unlawfully and maliciously...wound or cause any grievous bodily harm...with intent to do some grievous bodily harm...' S.20 OAPA penalises 'Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm...(GBH)'. The actus Reus under these two offences can either be wounding OR causing/inflicting GBH. 'Wounding' means that the continuity of the whole skin is broken - not merely a scratch. Broken limbs, where there is no breaking of the skin, are not wounds. However they do come within GBH, which is defined in R v. Smith {2001} 1 AC 146 as 'really serious harm', different in kind to the 'interference with health and comfort' suggested as the test of ABH in R v. Miller {1975} 1 WLR 1222. Whether the defendant has, 'caused' grievous bodily harm is purely a matter of causation. Lord Mackay in R v. Mandair (1995) 1 AC 208 stated: 'In the case of "cause", the nature of the connection is immaterial (provided the chain of events is short enough to satisfy the criminal law of causation)...' Jack has clearly committed the actus reus of homicide as he has caused James death and there is no intervening causes that may possible break the
Kates case falls under civil litigation in the category of negligence. She was served a beer that had a rusty nail that caused her blood poisoning .She has a right to sue over the abuse of her consumer rights leading to personal Injury.
Law Law is the basic set of rules set by a society to guide its citizen and government while types of law are just a written classification of enactments that are implemented by the courts and the government. Among the types of law are criminal and civil laws. Under the civil laws are the tort law which covers issues of negligence, defamation, nuisance and trespass. Issues of Injury are covered under the negligence tort. Such negligent behavior are usually caused by failure to observe due diligence. Consequently, under the tort law a person who suffers physical, economic or legal injury is entitled to bring suit. When a suit is based on injury and valid evidence is found to support it, damages are awarded to the victim to compensate for his harm. Kate's case falls under civil litigation in the category of negligence. She was served a beer that had a rusty nail that caused her blood poisoning .She has a right to sue over the abuse of her consumer rights leading to personal Injury. One would then wonder whether Kate is supposed to sue the Dublin bar owner or the beer manufacturer. Although one may see the bar owner and his staff at not being at fault because they buy and serve packed drinks from the manufacturer the law places consumer liability on both the manufacturer and other responsible parties in the chain of distribution. It is there fore the fault of not only the
Any crime in law is made up of two elements, the actus reus which is defined as the 'guilty act' and the mens rea defined as the 'guilty mind'.
Any crime in law is made up of two elements, the actus reus which is defined as the 'guilty act' and the mens rea defined as the 'guilty mind'. The actus reus must be voluntary and could be one of three things, an act which is the most common form, an omission such as failing to wear a seatbelt or state of affairs which is used in cases of possession and speeding where no mens rea is needed for the defendant to be found guilty. The mens rea could also be one of three things, malice afterthought which centres on intention which is divided into two sections, recklessness which is divided into a lower and higher level and gross negligence which involves a duty of care between the defendant and the victim and a serious breach of that duty. Intention can be direct so that the defendant intended the result of his actions or it could be oblique intention where the defendant is virtually certain that his act would lead to the result required by the crime. In R v. Nedrick (1986) the jury had to decide whether the result of the defendant's actions was a virtual certainty. R v. Cunningham (1957) shows an example of subjective recklessness whereby the defendant was aware of the result of his actions would be but still decided to go ahead and take the risk such as assaults. R v. Caldwell (1982) shows an example of objective recklessness where the defendant creates and takes a risk any
Discuss the criminal liability for an offence against the person of Reena in respect of Chloe and Miles and of Eric in respect of Reena.
Discuss the criminal liability for an offence against the person of Reena in respect of Chloe and Miles and of Eric in respect of Reena. Paragraph One The charges that can be brought against the accused depend on the injuries caused to and suffered by the victim. In the case of Chloe, who has only suffered bruises and scratches - which can be categorized as minor injuries, Reena can be charged with the common assault known as a battery, which is defined by Section 39 of the Criminal Justice Act. The Actus Reus of Battery is the application of unlawful force to someone else. The applying of force does not necessarily have to be personal contact; for e.g. just touching another's jacket may constitute the offence of battery as long as the other feels it. This can be seen in the case of Cole v Turner, the slightest degree of force, even the mere touching will suffice for a battery. The definition of force in this context would be the application of strength or energy. If these is no application of force there cannot be a battery. The harm suffered also needs to be physical; causing someone psychiatric harm does not constitute a battery. Now, from what is stated above, it is not clear whether Reena could be liable for a battery, as she has not physically touched Chloe in any way. If we look at the case of DPP v K concerning a schoolboy who poured sulphuric acid into a hot
Q, believe that the pistol which he was about to clean was loaded, pointed it at his friend R. R laughed and pretended to be shot. However, the gun went off and, in fact, R was killed. Unknown to Q, Q's on had loaded some bullets into the pistol.
Question Q, believe that the pistol which he was about to clean was loaded, pointed it at his friend R. R laughed and pretended to be shot. However, the gun went off and, in fact, R was killed. Unknown to Q, Q's on had loaded some bullets into the pistol. Advised Q. What difference, if any, would it make to your advice if Q had been drinking alcohol-free beer which Q'son had laced with a strong sedative and had caused Q to become befuddled so that Q believed that he was not pointing the gun at R? Suggested Solution Q › R (Murder) * Finding facts that Q did not intend to kill or cause GBH to R. * It would not satisfy the mens rea of murder. * Follows R v Hancock and Shankland [1986], Q did not have the foresight of consequences flowing from his act and the degree of probability of 'natural consequences'. In the matter of laws are so important to consider in inferring whether the result Q was intended. * Follows R v Nedrick [1986], Q did not recognise that R's death or serious harm would be 'virtually certain' to result from his act. It is the matter of laws to consider in inferring whether Q intended to kill or do serious bodily harm, even though he might not have had any desire to achieve that result. * Q is not found guilty of murder. Q › R (Constructive Manslaughter) * Without the necessary mens rea for murder, it would be possible to give rise of unlawful
Gross negligence and recklessness.
Gross Negligence and Recklessness In imposing criminal liability for a failure to recognise the risks, obvious to a reasonable person, there are at least two factors: the level of risk involved The seriousness of the potential harm Only where the possible harm is more serious and the risk is more obvious, do we distinguish recklessness from carelessness and impose liability. In assessing this, other issues may come in: The social utility of the action Thus, the surgeon who performs a necessary but dangerous operation may realise that there is a high probability of serious harm or even death but we do not blame him or her if the operation fails - we balance the risks that are undoubtedly being taken against the social utility of the activity. We regard skilled surgical care as socially useful and do not regard the surgeon who kills a patient as reckless whereas a player of 'Russian Roulette' would certainly be so, despite the odds of 6-1 against, since that is an action of no social value whatsoever. At this point, I am using the terms, 'reckless' and grossly negligent' as synonymous but the former term has had an uncertain history. It can be regarded as simply 'gross negligence' involving a major deviation from the standards of the reasonable man, not a state of mind at all. Alternatively it can be limited to those cases where the defendant subjectively recognises the
How do you feel the victims of abuse and violence who kill should be dealt with under law?
Law Essay "How do you feel the victims of abuse and violence who kill should be dealt with under law?" One defence of murder is Provocation. Provocation is only available in a trial for murder, not for assaults or any other offence. The procedure for provocation is that at first, the judge must have decided there is sufficient evidence that the defendant was provoked and whether or not the defence has been raised expressly by the defendant He must leave it to the jury to answer the questions such as - was the defendant provoked to lose his self-control? And was the provocation enough to make a reasonable man do as he did? The defendant must raise sufficient evidence of provocation for the judge to leave the defence to the jury. Whether the defendant has produced sufficient evidence is a matter of law for the trial judge alone to decide. Any witness at the trial, not necessarily by D alone, can provide this evidence. Since the 1957 Act, it has been capable for anything to constitute provocation, including words alone, actions by third parties, and provocation directed at third parties. Another defence of murder is diminished responsibility. It is not available for attempted murder. It is where even if a person kills or is a party to the killing of another, he will not be convicted of murder if he was suffering from such abnormality of mind. Before the 1957 Act, over 40% of
TORT ESSAY - NUISANCE AND NEGLIGENCE
TORT ESSAY - NUISANCE AND NEGLIGENCE A number of aspects of liability rise from this case study and each one will be discussed. With regards to the headaches suffered by Karl, it is necessary to look at private nuisance. Negligence is disregarded as it is assumed from the details in the case study that the headaches suffered are not so serious as to cause personal injury, it is just described as 'mere discomfort'. Such a claim under the law of nuisance requires three factors to be fulfilled. The first being a continuous interference. This is shown in De Keyser's Royal Hotel v Spicer Bros Ltd (1914) 30 TLR 257. From the case study one can assume that it is a continuing interfering act and not a one off. Secondly, the interference must be unlawful or unreasonable. This is up to the claimant to prove. The rule for this is sic utere tuo ut alienum non laedas (So use your own property as not to injure your neighbour's). The locality in this instance reflects the unreasonableness of Jane's actions. It occurred in a residential area and therefore such Gases were not to be expected. The duration of the act will also be taken into account. Because Jane is a young inventor it is assumed her work is an ongoing process and not a one off as explained above. The seriousness is also considered. In Walter v Selfe (1851), Knight-Bruce V C said "an inconvenience materially
