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
Consider what offences, if any, have been committed.
(5) Clarence, who keeps Dash, an Alsatian dog, as a pet, has frequently been irritated by the rude behaviour of Ellen, the six-year old daughter of his neighbours, who make little attempt to control her. One morning he sees her teasing Dash, but does nothing. After some while he sees Dash turn on Ellen and attack her, but he still does nothing, because he thinks the child must be taught a lesson. Dash seriously injures Ellen before Frank, her father, is able to rescue her. Consider what offences, if any, have been committed. This is a case of omissions liability, and omissions do not generally attract liability, unless there is some duty between the defendant and victim, which can arise, through statutory, contractual, or voluntary obligations. Whilst none of these apply here, another category of duty can arise through the victim's creation of a dangerous situation (Miller). Clearly this is satisfied here as seeing as Dash is his dog, it can be argued that he is responsible for it, and as he sees the event 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
Many liabilities in tort arise by virtue of the law alone and are not fixed by the parties. By contrast, the law of contract is based notionally on agreements, the terms of which are fixed by parties. However, in modern law it is unrealistic to suppose
"Many liabilities in tort arise by virtue of the law alone and are not fixed by the parties. By contrast, the law of contract is based notionally on agreements, the terms of which are fixed by parties. However, in modern law it is unrealistic to suppose that contract and tort are so very different from each other"1 Consider and evaluate this view of the development of the interrelationship between contract and tort. The above quote is fairly accurate in suggesting that there are fundamental differences between contract and tort. However it is argued that there are some close similarities with clear areas of overlap and instances where both contract and tort are said to exist concurrently. A traditional viewpoint was that tortious duties were imposed automatically by law protecting individuals against civil wrongs, and contractual obligations were consensually entered into where both parties were in agreement with the terms of the contract. This essay aims to draw on contributions from academics and case law in this area to identify whether Harpwood's idea is valid. A long held view is that tortious obligations are fixed by law, whereas contractual liability is entered into by contracting parties. However, this is a very simplistic way of looking at these two branches of the law of private obligations. Referring to Cooke's contribution of the Sale of Goods Act 1979 (as
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
"The English Law on when damages can be claimed for psychiatric harm is largely incoherent. The best solution would be either to abolish the right to make such claims altogether or to remove the inconsistencies in the current law". Discuss.
Victoria Maschio Group I "The English Law on when damages can be claimed for psychiatric harm is largely incoherent. The best solution would be either to abolish the right to make such claims altogether or to remove the inconsistencies in the current law". Discuss. The English law's approach to the notion of psychiatric harm, often derogatorily names nervous shock, has tried to find its way in between two diametrically opposite views. On the one hand it is argued that victims of psychiatric illness should be compensated no differently from those persons who suffer physical injuries; on the other, there is a deep skepticism about the reality of the conditions that underlie the label of psychiatric harm, inducing its believers to propose that recovery for it should be altogether abandoned. In the course of this essay I propose to look at these opposing views, then discuss the requirements imposed by the law for a claim in psychiatric illness caused by negligence, and lastly look at the Law Commission's proposals as to how best resolve the "dreadful mess"1 that the current law finds itself in. Historically Chamallas and Kerber2 argue that the reason why the law has been so reluctant to compensate psychiatric illness is because it was regarded as emotional harm which was caused by the victims "pre existing susceptibility"3. Since women were more likely to be prone to the
This essay mainly focuses on one aspect of tort law - the claim for economic loss, which was firstly demonstrated in Hedley Byrne & Co. Ltd v. Heller & Partners (1963
The law of England and Wales is based on the "common law system", in which the "main source" of English law is judicial precedent. (Deebank, S. Handout 1, p.6) This means that judges must follow relevant decisions of senior courts. The system develops incrementally as new cases are heard. This essay mainly focuses on one aspect of tort law-the claim for economic loss, which was firstly demonstrated in Hedley Byrne & Co. Ltd v. Heller & Partners (1963). The basic concern of tort law is to provide people who have been physically harmed or whose properties have been damaged dues to the wrong doing of another party a legal protection. Negligence is the most common action in tort law. In order to succeed in a case, the claimant has to prove each of the following three aspects: a duty of care owed by the defendant; breach of that duty of care by the defendant and the suffer of damages of the claimant as a result. In Donoghue v. Stevenson (1932)1, the "neighbour principle" was introduced by Lord Atkins to determine whether a duty of care is owed. "...those persons who are so closely affected by my act", as the claimant and defendant must be in a relationship of legal proximity, e.g. manufacture and consumer. (Adams, A. 2003, p.141) The decision supplied a legal remedy to "meet an obvious social wrong". (Deakin, S. et al, 2003, p.76). Prior to 1963, pure financial loss was
Investigating how the concentration of hydrochloric acid affects the speed of the reaction with marble chips.
LA176 LAW OF TORTS ll This question concerns potential liability for economic loss caused by negligent misstatement. It is not determined by the Donoghue v Stevenson1 case alone in which the 'neighbour principle' was established, but in agreement with more restrictive test which preside over the imposition of a duty of care for such statements. This is due to the fact that the potential liability of the representor is far wider than that where the subject involves a negligent act since a statement can have an effect on a large undefined class of plaintiffs. Claims for negligent misstatement can often involve vast amounts of money since unlike physical harm, where events tend to rest where they fall, advice can be relied upon by any number of people who come into contact with it. In order to determine whether Dr Dire owes Ben a duty of care in respect of the economic loss arising from the negligent medical reference, the criteria laid down in Hedley Byrne & Co. 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
