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University Degree: Tort Law

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  1. The tort of negligence.

    This talk of 'duty' or 'no duty' is simply a way of limiting the range of liability for negligence"6 and confirmed the 'neighbour' principle from Donoghue v Stevenson7. This was furthered in the case of Anns v Merton London Borough [1978]8 where it was said "that in order to establish that a duty of care arises in a particular situation"9 then you must go through a two-tier test. The first stage is to see if there was "a sufficient relationship of proximity"10 so that the defendant ought reasonably to have had the plaintiff in mind whilst doing the act or omission that caused the breach of duty.

    • Word count: 2521
  2. Law of tort case study - Bert's claims in torts.

    Dan's liability It is clear from the facts that Dan contacted Sally with intent (albeit to console her). The issue of law is, was the contact implicitly consensual? Sheller JA in Rixon v Star City5 stated "any touching of another's body... is capable of amounting to a battery..."6 and Sally would argue that she did not consent to Dan's touch, regardless of the intent. Dan may also refer to the same case in saying that his touch was "not outside of ...what is generally acceptable in the ...conduct of daily life"7. Had he only touched Sally's shoulder, the court may have accepted the argument, but the fact that he placed his arm around her shoulder would not doubt be considered in excess of acceptable touch, and even invasive.

    • Word count: 1400
  3. Negligence in law.

    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 duty and damage could be shown.

    • Word count: 837
  4. The tort of negligence relating to claims for psychiatric injury.

    Albert witnessed the events on television and so only has a claim for compensation as a secondary victim. The leading cases on this matter are McLoughlin v O'Brian2 and Alcock v Chief Constable of South Yorkshire Police3. In McLoughlin, Lord Wilberforce established three 'control mechanisms' which governed whether a claim for psychiatric injury, by a secondary victim, may/would be successful. The first 'control mechanism' was that there should be a 'close personal tie of love and affection' between the person seeking compensation and the immediate/primary victim. Lord Wilberforce stated that this applied to the relationship between a parent and child and spouses.

    • Word count: 2301
  5. Pete could be liable for the psychiatric injury suffered by Alan. The term psychiatric injury, 'denotes a traumatic response to an act'[1], which in this case is the recurrence of depression suffered by Alan.

    Where there was an affirmative answer, the duty of care would be established, even though physical injury did not in fact occur in any form. The plaintiff was not required to prove that injury by nervous shock was reasonably foreseeable by the defendant and it was irrelevant that the defendant could not have foreseen that the plaintiff had an 'eggshell personality'5, since it was established by medical science that psychiatric illness could be suffered as a consequence of an accident, even though it was not caused directly through physical injury to the plaintiff.

    • Word count: 2045
  6. In the early 1800's the tort of negligence emerged as a separate category of torts due to the fact that actions in the tort of negligence were increasing significantly during that period.

    which widened the scope of negligence immensely and opened new categories to the notion of duty of care. It was one of the first tests devised in order to conclude whether a duty of care exists and in turn, whether the defendant acted negligently: The rule that you are to love your neighbor becomes in law, you must not injure your neighbor...you must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbor. Who then in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that ought to 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.

    • Word count: 2009
  7. How Does the Law Justify the Imposition of Strict Liabilty For Some Offences?

    This mat happen in large corporations where its hard to know what is happening. Strict liability cases are normally relating to businesses where the penalty is a fine. This has been criticised as people may just pay the fines all the time as they are small. Individual liberty is not under threat. It may be cheaper paying fines then changing bad working area therefore there is little deterrent. It has also been criticised that although many strict liability offences are far lesser crimes then rape etc, some do impose a severe fine or penalty e.g.

    • Word count: 932
  8. Tort Assignment.

    the contractor in the course of the execution of the work.2 However, the courts have taken exception to this if the tort committed falls into specific categories, such as cases involving fire escape and cases where the employer is under statutory duty to which he can't delegate. However, when looking at John and Wendy's case we need to look at the exception the courts take to cases involving hazardous acts. The principle is that if a man does work on or near another's property which involves danger to that property unless proper care is taken, he is liable to the

    • Word count: 1886
  9. The area of tort law regarding 'a duty of care' in negligence has been a matter of much controversy for some time, the present law does not contain a great deal of clarity and definition in regard to a general principle of who can claim and who cannot.

    Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to reasonably have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question" The basis of this test for a duty of care is clearly focused upon the foresight of harm.

    • Word count: 2841
  10. "Since the case of Donoghue v Stevenson (1932) the number of negligence claims have increased markedly. This has consequences not only for the parties involved in the case, but for society in general."

    It was her friend that entered into an agreement by buying the bottle of ginger beer. The principle of tort did not allow consumers to sue manufacturers for injuries. Despite this, Donoghue argued that manufacturers should be liable to consumers for their faulty products. Donoghue was successful in her claim and her case now serves as a precedent for all negligence cases to date and, most importantly, ensures consumers have legal rights. However, before a person can successfully sue for negligence, a number of tests have to be undertaken. One of the first is classified as the three elements of negligence, and consequently it ensures that the three elements necessary to sue for negligence are established.

    • Word count: 2110
  11. The Law of Tort - example cases

    Lastly, Albert had not specially requested for considered advice, mentioning to Barry that it would be adhered to. Therefore, the condition of notion of proximity was not satisfied. According to Lord Devlin's formulation, a duty of care arose only when there existed a relationship "Equivalent To Contract"1, between the claimant and the defendant, an application of the general conception of proximity, between the two parties. In the given scenario a special relationship between the parties was non-existent. Albert's reliance on Barry's advice was unjustifiable, as the loss suffered here was not attributable to the defendant's negligent mis-statement; he had not voluntarily assumed responsibility towards the claimant.

    • Word count: 1759
  12. French law of obligations.

    In this case, I will advise Jean-Philippe on each of these three situations. The case will be approached in two main parts, each with two sub-sections. Firstly, (I) Liability for the Deeds of Things (La Responsabilit� du fait des Choses) will be split into (A) Garde (Control), and (B) Causation. Secondly, (II) Liability for the Actions of Another Person (La Responsabilit� du fait d'Autrui) will be split into (A) Special Liability for Parents and (B) A Possible Defence. (I) Liability for the Deeds of Things (La Responabilit� du fait des Choses)

    • Word count: 1641
  13. Consider what offences, if any, have been committed.

    taking place, but leaves it to Frank to rescue Ellen, has not taken any steps to correct this mistake and thus his omission can constitute an act. Frank could be charged with causing grievous bodily harm with intent contrary to s.18 of the Offences Against the Person Act 1861. The actus reus is that the defendant caused the grievous bodily harm, and as following Janjua;Choudhury, this was held to mean 'serious' bodily harm , Ellen's 'serious injury' will suffice and following C vs Eisenhower, if the epidermis of the skin is broken(likely if bitten by a dog), it would also qualify under the wounding section.

    • Word count: 897
  14. Nuisance Problem Answer.

    Reasonableness in nuisance is different to the reasonableness in negligence. In negligence the unreasonableness of the defendant is the central issue. However, in nuisance the central issue is whether the degree of interference with the plaintiff's property rights is sufficiently great to call for legal intervention. In considering whether the interference is unreasonable the courts will take in to account various factors, including the nature of the locality in which the activity is carried on, the sensitivity of the plaintiff and the motive and malice of the defendant.

    • Word count: 719
  15. Strict liability offences.

    Most strict liability offences have been created by statute, however public nuisance and blasphemous libel are examples of common law strict liability offences. A case which shows this is Lemon and gay news ltd 1979, The defendants were charged with blasphemous libel for publishing wicked and unlawful libel concerning the Christian religion. The jury were directed that it was not necessary to prove intention other than an intention to publish that which in the jury's view was a blasphemous libel.

    • Word count: 2020
  16. Offences of strict liability are those crimes which do not require mens rea with regard to at least one or more elements of the actus reus.

    It was held that knowledge that the girl was under the age of 16 was not required in order to establish the offence. It was sufficient to show that the defendant intended to take the girl out of the possession of her father. The vast majority of strict liability crimes are statutory offences. However, statutes do not state explicitly that a particular offence is one of strict liability. Where a statute uses terms such as "knowingly" or "recklessly" then the offence being created is one that requires mens rea.

    • Word count: 798
  17. My practical work in November 2002 was for the script option "The Trial".

    The claim is a demand by the injured party for compensation from JLTS. On the other hand, criminal liability is crimes of criminal conduct. Criminal liability includes culpability (purposely, knowingly, recklessly, negligently), capacity (infancy, intoxication, insanity), and responsibility (volition, free will, competency). In general, employees can file an employee personal property claim when he or she suffers a loss incident during employment with JLTS. An example of a potential employee personal property claim is where a JLTS employee is operating a mower and the mower cuts the side of his or her boot.

    • Word count: 681
  18. A Tort System In Need of Repair

    While some progress has been made on legislative tort reform, there is still a great need for more. In 1994, there were over 815,000 new tort cases filed-that's a new case every thirty-nine seconds. It comes as no surprise that last year, all persons suing, including victims with legitimate injury cases, were forced to wait an average of 65 months to go to trial- 15 months longer than in 1990. Because the courts are over crowded with frivolous liability lawsuits, those with legitimate cases are forced to wait years. Lawsuit liability abuse is strangling the American justice system because all of the courts are clogged with meritless lawsuits.

    • Word count: 2517
  19. Harold has been involved in an accident at work. He suffered severe spinal injuries and is unlikely to be able to return to work for some time.What type of case is this? Which court might the case appear before? What could be the outcome of the case?

    The case involves civil law procedures because the civil justice system is designed to decide disputes between individuals. A civil claim will therefore arise because Harold would have the right to seek remedy for the losses he would have to withstand.

    • Word count: 382
  20. The Federal Government's "review" of the law of negligence - The aim of the review was to limit liability and the quantum of damages evolving from personal injury and death.

    The unpredictability of the law, the ease with which plaintiffs succeed and the generosity of courts in awarding damages, have resulted in increasing insurance premiums. Throughout the country, the increased premiums have resulted in the absence of insurance or the availability of insurance only at unaffordable rates which has adversely affected many aspects of community life. Small local authorities, especially in rural areas, that have been unable to obtain public liability insurance, have closed roads. This has resulted in some areas people having to undertake detours of long distances, sometimes in excess of 100 kilometres , to reach neighbouring communities or individuals.

    • Word count: 2003
  21. Statutes and Duties

    Within each of these points there are cases that have taken them into consideration and implementation. If it is possible to find rationales or general principals for each of the above then we may be able to see a contradiction between English and Canadian law in relation to the comments made by Dickson J (Supreme court of Canada) in The Queen v Saskatchewan Wheat Pool [1983] SCR 205.. Does the statute give rise to an action for damages? Statutes usually either gives guidance on this question, by creating a specific action by the wording , this wording gives the answer to this question straight to the courts in almost as simple form as yes or no.

    • Word count: 1208
  22. “The Imposition Of Strict Liability Offences Is A Necessary Evil In The Fight To Protect The Public From Harm” Discuss

    On receiving the recommendation that it was, he offered it for sale. However the meat turned out not to be fit. The butcher was convicted of the offence of offering for sale meat that was not fit for human consumption. To many, this sounds unfair as he had taken due care and reasonable steps to avoid committing the offence and short of selling the meat the actus reus could not be avoided. Generally strict liability offences can involve any offence under road safety, pollution and food hygiene. An example being that of Smedleys v Breed (1974)

    • Word count: 664
  23. Does Criminal law consistently follow either an ‘objectivist’ or a ‘subjectivist’ approach to liability?

    The area has been the subject of much legal and philosophical debate. In regard to strict liability crimes, the approach is just as unsure. In criminal law there is said to be strict liability when there is liability even in the absence of mens rea and even though [his] ignorance is not attributable to any default or negligence on [his] part. This creates much controversy -the questions raised are: how can punishment in cases where the defendant believed they were doing no wrong be justified, and how can mens rea, supposedly the central vehicle by which the blameworthy are identified be sacrificed?

    • Word count: 929
  24. Surgeon’s Liability and Claims against the Surgeon

    It will also attempt to identify some policy considerations that are specific to the medical profession. Battery is the intentional and direct application of unlawful force to the claimant 5. It is actionable per se, that is, without the need to prove damage (As opposed to negligence where damage is a prerequisite element of the tort). The purpose of the tort of battery (specifically Trespass to the Person) is to protect the physical integrity of the person. In negligence the purpose is to compensate the claimant for the harm suffered.

    • Word count: 2151
  25. Tort 5: Causation & remoteness I

    The casualty officer sent him home and told him to consult his own doctor. However, a few hours later, before he could consult his doctor, he died of arsenic poisoning. The deceased's wife sued under negligence. It was found that the deceased would have died even if the Defendant had administered the anti-toxin required for arsenic poisoning, and therefore the Plaintiff had not, on the balance of probabilities shown that the Defendant had acted negligently. The question was, but for the doctor sending him home, would the deceased have died? The answer was Yes.

    • Word count: 983

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