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University Degree: Tort Law
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- Marked by Teachers essays 4
The case of Wheat v. E Lacon & Co Ltd1 defines an occupier as "a person who exercises a sufficient degree of control over premises that he/she ought to realise that any failure on their part...may result in injury to a person coming lawfully on there." According to this definition, Ingrid may find herself liable for the nuisance caused to other neighbours such as Karl even though Jane conducts the experiments causing the nuisance. Furthermore, as Ingrid is aware of the fact that there are cracks in the walls adjoining Jane and Karl's house, it is foreseeable that fumes from
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Causality in Lynch Vs. Fisher. Did the original negligence of the driver of the parked truck set in motion a chain of circumstances following consecutively one upon the other which led to plaintiffs injury?
Gunter while attending to his wife. In complete delirium the defendant shot Lynch in the ankle causing serious damage. Upon these instances, the plaintiff has accordingly filed charges against the four defendants, Harry Fisher, Roger Wheless, their insurance company, Lumbermen's Mutual Casualty Company of Chicago, Ill., and Robert Gunter for the damages caused to his ankle. Finally, the court could see no break in events corresponding to the concurrent negligence of the parked truck and the collision to the injury of the plaintiff.
- Word count: 1974
Negligence law case analysis. As a customer, Olivia injured by an invalid carriage (Emmas) when she was shopping in Ploymart. Was there a breach of duty on the basis of a failure to protect?
Whether there was a breach of duty As a customer, Olivia injured by an invalid carriage (Emma's) when she was shopping in Ploymart. Was there a breach of duty on the basis of a failure to protect? The test is whether Ploymart and Emma provided a reasonable standard of care, if no, the breach is proved. First, the standard of care can be examined by a reasonable person measures the risk of harm against the cost of averting it. In this case, Olivia was injured by buggy of Emma even though Emma did not mean to hurt her.
- Word count: 1998
Causation: Factual Causation: 'but for the defendant's breach would the claimant have suffered the damage?' the answer is no! Because of Simon Shock's breach of duty, Naomi Gamble has suffered severe burns to her face and hands. The 'but for test' was first applied in Barnet v Kensington & Chelsea Hospital. This test represents whether the defendant's wrong in fact caused the claimant's harm.3 Miss Gamble may rely on the 'but for test' to show that Shock's negligence in fact caused the property damage and the burns she had suffered. Using the test from Wilsher v Essex AHA, where a junior doctor was not found liable for inserting an oxygen tube into a vein instead of an artery of a premature baby.
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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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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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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
- Word count: 1862
- 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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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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Describe the elements of the Tort of Negligence and critically analyse their practical applications.
The elements that make the tort of negligent valid or actionable are that 1. it should be proved that the tortfeasor owed the claimant a duty of care, 2. that by negligent conduct the defendant broke this duty of care, 3. this negligent conduct caused a consequential legally actionable damage to the claimant, and that 4. there is a proximate connection between the negligent conduct and the resulting injury (Common law, 147). Duty of care is defined as the duty of people to exercise "reasonable care" when dealing with others. Reasonable care is defined as the degree of care that a reasonable person should, not necessarily would, act with, and this is determined by tort law.
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Liability for a wrong that is imposed without the necessity of proving intention or negligence on the part of the Defendant.
On this basis the torts are actionable per se. This means that proof of fault is not required by the claimant; this outlines that liability in trespass are strict. Negligence as a tort is defined as the breach of a duty of care, owed by the defendant to the plaintiff, which caused damage to the plaintiff. For Negligence to be relied on, there are three elements that must be established. The defendant must have owed a duty of care to the plaintiff, that duty must have been breached and that the claimant suffered damage by the breach of duty, which must not be too remote.
- Word count: 1909
which cause a form of loss to the plaintiff, the person (defendant) will be held at fault in the court and the remedy will be damages. There are four important elements of negligence a plaintiff has to prove to succeed in an action of negligence: 1. The Plaintiff must prove the defendant owe him a duty of care 2. The Plaintiff must prove that there was a breach of duty of care by the defendant 3. The Plaintiff must Prove that he suffer injury, damage and loss 4. The Plaintiff must prove that the damage and loss suffered is as a result of the alleged breach of the duty of care by the defendant.
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'In recent times, the House of Lords has given up any attempt to examine causation questions in a systematic manner. If their Lordships feel the claimant deserve compensation they will bend the rules to achieve that result.'
(Causation in Law or remoteness of damage) However, the courts have found that is not always easy to analyse situations using this standard test for causation. Lord Hoffman describes the 'but for' test as being the standard criteria and the 'most commonly prescribed'5. But there is still room to deviate from this criteria when the situation demands it, and the House of Lords has been doing so for a very long time, not just in recent times. The difficulties of applying the 'but for' test have been seen in numerous situations such as * When there is an omission rather than an act by the defendant , the court must then determine what would happen had the defendant chosen to act.
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Tortious liability arises from the breach of duty primarily fixed by law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
successfully claim in negligence, he has to prove that a Duty of Care existed between Sun Loungers Syndicate and himself which was breached resulting in damages payable to Crispin. To determine the existence of duty of care towards Crispin the three part test of foreseeability, proximity and the need to be fair and just is to be used. Crispin had been bullied by work colleagues, the bullying and harassment involved both physical and verbal abuse, and results not just from Crispin's sexual orientation but also from the fact tat he was brighter and more capable than any of his colleagues, including the managing director, who encouraged the bullying and who had the authority and responsibility to stop this harassment.
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It is clear that psychiatric injury presents the law with the most profound problems and it has only kept it under control by drawing a series of arbitrary lines. Discuss the above statement.
Such claims do not create 'profound problems' as it is a clear case of the primary victim being subject to danger. The Lords held in Page v Smith3 that where there is a danger of physical injury and it is foreseeable, the law should make no distinction between physical and psychiatric illness. The so-called 'profound problems', arise from claims made by secondary victims. These are claimants who suffer psychiatric illness by 'witnessing the death, injury or imperilment of another person'4.
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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.
- Word count: 1911
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
- Word count: 1600
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.
- Word count: 1975
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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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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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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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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