Advice for the Parties
Advice for the Parties All the cases in question involved can be covered by the tort of private nuisance. Private nuisance is the interference with a person's use and enjoyment of the land. This can occur in three different ways; encroachment on land, direct physical damage on the land or interference in any way of the land. Nuisance can be either continuous or recurrent. It is important that we distinguish nuisance form the tort of trespass and negligence as they run closely together. This essay will discuss the liability of all parties involved, using the tort of nuisance. Advice for Ingrid The question to be asked when considering Ingrid's liability in this case is can she be held liable for any damage due to the fact that she is the property owner. In the case of Sedleigh-Denfield v O'Callagan1, the defendant was a landowner on whose land a pipe was laid by a trespasser negligently in a ditch. The defendant had it checked twice a year. After a heavy rainstorm, the pipe became blocked and neighbouring land was flooded. It was held that the occupier of the land was liable for any nuisance existing on his property, to the extent that he can say he did all that is reasonable to stop the nuisance, regardless of the fact that he received any benefit from it or crated it. It is enough to say that the defendant was aware of it and permitted it to continue. The case
Principles of Delict
George Buchan ( Sir Hugh Jewallet Principles of Delict Delict is part of the Law of Obligations. When studying delict, we find that the law imposes an obligation on each one of us not to cause unjustifiable harm to other persons or their protected interests. The main function of this area of civil law is to define the circumstances in which an individual or a corporate body, on finding that is interests are, or have been, harmed by another's harmful act, may seek a remedy. The wrongful act is described as a civil wrong or a delict and the remedies available are either an interdict to stop the wrong recurring or compensation, sometimes called reparation Delicts or Civil Wrongs do not lead to the criminal prosecution of the wrongdoer, but to civil proceedings in the form of an action for damages against the wrongdoer in a civil court. If the action is successful , a sum of money, which is called ,damages, or compensation, or reparation, will be paid to the injured party. The distinction between crimes and delicts does not depend on the kind of wrongful act itself. The conduct will be regarded as a crime if it is not only harmful to the victim but to the public at large. Such conduct must be suppressed and discouraged by the state. Therefore, the state takes action and the wrongdoer is prosecuted by public action. If the conduct is regarded as a wrong to only the
IN THIS REPORT I WILL INVOLVE THE CONCERNS, WHICH YOU ARE FACING ABOUT THE LEGAL LIABILITY OF YOUR BUSINESS
For: Steve Watkins From: Nathan Cozzetto Ref: Civil Liability Date: 29/12/04 IN THIS REPORT I WILL INVOLVE THE CONCERNS, WHICH YOU ARE FACING ABOUT THE LEGAL LIABILITY OF YOUR BUSINESS. .0 INTRODUCTION. As we are all aware the business, which we are involved in, deals with direct contact with the general public, also the activities on offer are a wide range of extreme types of sport. Being aware of this you have asked me to find out the legal liability that you may encounter. So picking out the main points I have decided to look at: * The law of negligence with the effect on the business. * The employer's liability for the actions of employees. * The liability of occupiers to visitors and trespassers. 2.0 THE LAW OF NEGLIGENCE The definition of negligence "liability in the tort of negligence arises where foreseeable damage to the plaintiff is caused by the defendants breach of legal duty to take care." What this means in an understandable explanation is that, for example, someone who has decided to do an activity such as rock climbing, has fallen from a height, which has then lead to a foreseeable damage such as a broken leg or sprained ankle. As the client has obtained an injury they have looked into compensation for the accident if we as the company hadn't taken the necessary precautions to ensure the safety of all clients, such as safety equipment and making
Negligence in law.
Umair R. Vadria "The categories of Negligence are never closed." Lord Macmillan [Donoghue v. Stevenson] Negligence as defined by Winfield is the breach of a legal duty to take care that results in damage, undesired by the defendant, to the plaintiff. Before Donoghue v. Stevenson, the Tort of Negligence even though existing, was not ever in recognition as a complete tort in itself. Earlier decisions of the courts in cases very similar to Donoghue v. Stevenson show that the courts were very reluctant to impose liability. These cases were: Muller v. Bar of Co (1929) M'Govan v. Bar of Co (1929) Both these cases related to a mouse being found in a bottle of ginger beer. The courts could not find fault to associate the accident with the manufacturers. It was said that even if fault were proved, would the English law allow such a claim. Lord Macmillan held in D&S that a manufacturer does know that the consumer will consume his goods. In such cases where there are no alterations to the product from the manufacturer to the consumer, the manufacturer does come under a duty of care towards the final consumers. D&S established negligence as a separate tort, and opened a gateway to future claims. Judges began to look for duty of care in cases depending upon their facts, and where this could be established compensation could be sought, provided of course that breach of that
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
Tort 1 LW1018 Coursework Semester 1 2005-2006 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. For all of the possible claims in question, a duty of care firstly needs to be established. The development for a general test establishing a legal duty of care began with Lord Atkin's judgment in Donoghue v Stevenson [1932].1 This case is particularly important. This is due to the fact that prior to this case there would have been no remedy available for claimants in the same situation as Mrs Donoghue. This was found in the previous case of Winterbottom v Wright [1842].2 Where the courts held that there could be no legal duty of care established in the absence of a contractual relationship. Mrs Donoghue did not purchase the ginger beer herself and had no contract hence was unable to sue in her own right. Mrs Donoghue decided to sue the manufacturer of the ginger beer for his negligence. 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
Torts: How Satisfactorily have the courts used the control devices of duty of care, breach of duty, and causation of damage to limit liability in the tort of negligence. Discuss with reference to the following types of claim: personal injury, property dam
How Satisfactorily have the courts used the control devices of duty of care, breach of duty, and causation of damage to limit liability in the tort of negligence. Discuss with reference to the following types of claim: personal injury, property damage, psychiatric loss, and pure economic loss. Introduction: To quote Winfield and Jolowicz, the tort of negligence can be defined as 'the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff.' Therefore three primary elements must satisfied for there to be a successful claim in negligence. Firstly, the defendant must have owed a duty of care. Secondly, this duty of care must have been breached and thirdly, as a consequence of the defendants breach, the claimant must have suffered personal injury, property damage or psychiatric loss (which is not too remote). The duty of Care: In deciding whether the defendant owes a duty of care, the Caparo test1 is crucial I.e. it is now the leading case in deciding where a duty of care is owed and has overridden the neighbour principle defined in Donaghue v Stephenson2 (reasonable foresight). Therefore, provided that damage can be foreseen and the parties have a proximate relationship and the courts have agreed that it is 'fair, just and reasonable' to impose a duty of care (taking into account policy considerations), a claim in negligence
To succeed in a negligence action in tort, the claimant must prove three things
Samantha Freeman Tort BA Hons Legal Studies Year 2 Question 1 To succeed in a negligence action in tort, the claimant must prove the following three things: . That the defendant owed a duty of care. 2. That the defendant was in breach of that duty. 3. That the claimant suffered damage caused by the breach of duty. Lord Atkin defines duty of care, as "you must take reasonable care to avoid acts or omissions, which you can reasonably foresee would likely to injure your neighbour." To decide whether there is an existence of a duty of care, it involves applying one or more of the following: foresight, proximity and consideration of justice and reasonableness. Foreseeability means that the defendant must have foreseen some damage towards the claimant. A case that shows foreseeability and the neighbour test is Donoghue v. Stevenson [1932] A.C 562; 20 M.L.R. 1 it was held in this case, that there could be a remedy in tort as a manufacture has a duty of care to the consumer, also if it is foreseeable that the claimant may be injured then the defendant will be held liable. Proximity will vary from case to case, as it will be examined differently in each individual case. An example of a case, which shows this, is Bourhill v. Young [1943] A.C. 92 in this case the claimant was not within the area of impact so there was no proximity, so the House of Lords held the
Negligence as a tort.
Negligence as a tort may be defined as the breach of a duty of care owed by the defendant to the plaintiff by not complying with the standard of care of the reasonable person which results in the plaintiff suffering damage. The damage may be personal injury, damage to property or just pure economic loss. It may in addiction, consist of psychiatric damage also known as "nervous shock". Before 1932, the Courts followed precedent in earlier cases that if a duty of care was held to exist in a similar earlier case then the judge held there was a duty of care but if a duty was held not to exist in an earlier case then the judge held there was no duty. There were very few factual situations where a duty was held to exist. In Donoghue v Stevenson(1932) Lord Atkin, in attempting to trace a common thread through existing authority, formulated a general principle - the "neighbour principle" - for determining whether, in any given case, a duty of care should exist. He said: "You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour.... 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." The significance of this principle was that it firmly
Law of Tort Assignment.
Law of Tort Assignment (i) Since the enactment of the Human Rights Act 1998, it seems that some areas of tort law have been affected by the Act to a great extent. One specific element of tort law that has been affected is 'duty of care in negligence.' The tort of negligence may signify 'whereby persons who by carelessness have caused damage to others and may be held liable to pay compensation.' 1 However, it is not always the case when 'careless conduct which causes damage will give rise to an action.' 2 As this essay will focus on the impact of the Human Rights Act on duty of care in negligence, it is necessary to determine 'whether the type of loss suffered by the claimant in the particular way in which it occurred can ever be actionable,' 3 as this may play a great role in the development of the tort of negligence. Before a duty of care is held to exist, the requirement established in Caparo Industries Plc v Dickman [1990] 1 All ER 568 must be satisfied: (a) 'Foreseeability of the damage; (b) A sufficiently 'proximate' relationship between the parties; and (c) Even where (a) and (b) are satisfied it must be 'just and reasonable' to impose such a duty.' 4 The Human Rights Act 1998 gives 'further effect to rights and freedoms guaranteed under the European Convention on Human Rights.' 5 The aim of the Human Rights Act is as stated in section 6 (1), 'courts should
The law of Tort.
st B.C.L. 2000/2001 Compulsory Tort Essay "..[courts of justice should not] allow themselves, in the pursuit of perfectly complete remedies for all wrongful acts, to transgress the bounds, which our law, in a wise consciousness as I conceive its limited powers, has imposed upon itself, of redressing only the proximate and direct consequences of wrongful acts." Coleridge J., Lumley v. Gye (1853) 2 E. & B. 216 at 252. Keith Ó Connachtáin Student No. 99461323 12/03/01 The tort of negligence presents an awkward dialectic. On the one hand, there is the ultimate desire to compensate each and every deserving claim presented to the courts by plaintiffs who have suffered genuine injury or damage: a truly altruistic ideal. Yet, on the other hand, this is negated by the clear need to impose limits to avoid the greatly feared scenario of "liability in an indeterminate amount for an indeterminate time to an indeterminate class".1 When two such opposing forces present themselves, one question above all becomes of prime concern: is the resulting synthesis, artificially and consciously formulated by the courts, that which most effectively and objectively combines the merits and ideals of one force with the legitimate fears and reservations of the other? The search for this elusive balance has proved difficult at best, if not almost impossible at times, as is readily visible,
