The following is a written opinion on the related cases of John Russell, Patrick James, Owen David, Anne Sparks, Herbert Regan, South Herts Police Authority and The Metropolitan Police Commissioner.
The following is a written opinion on the related cases of John Russell, Patrick James, Owen David, Anne Sparks, Herbert Regan, South Herts Police Authority and The Metropolitan Police Commissioner. In order to give an objective opinion of the subsequent legal problem, it is essential to focus on the different elements of the stated facts. The first element in the claimant's case is whether a duty of care was owed to take reasonable care. The question, which then arises on the part of the defendants, is whether any liability attached to them will also be attached to their employers as they were acting in the course of their employment. John Russell v. Herbert Regan Firstly it must be established whether or not a duty of care was owed. For a successful claim of negligence1, the following need to be taken into consideration. o Did the defendant owe the claimant a duty of care? o Was there a breech of that duty? o Did the breech cause the harm? All parts of this equation need to be present for a claim, if one part is present without the other, counsel for the claimant cannot rely on this. To further establish this duty, it must be considered whether there was proximity2 and / or reasonable foreseeability as in the case of Heaven v. Pender 1883. However, the law protects certain professionals, floodgates are a policy consideration and the reverse of this is known as the
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
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.
TORT 1 Coursework Negligence consists of three elements: a legal duty to take care; breach of that duty and damaged suffered as a consequence of that breach. Of which a common definition is: "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." Tort of negligence importance begins with Lord Atkin's ground breaking judgement in Donoghue v Steveson [1932] AC 532. Where the claimant argued that she had suffered shock and gastroentertritis after drinking ginger beer from an opaque bottle out of which a decomposing snail had fallen when the dregs were poured. A friend brought her the drink so she couldn't sue in her own right in contract. The House of Lords held that the manufacturer owed duty of care, liable in negligence to the consumer of its products. Lord Atkin's judgment contained critical elements; negligence would be proved by satisfying a three part test: 'The existence of a duty of care owed to the claimant by the defendant' 'A breach that duty by falling below the appropriate standard of care' 'Damage caused by the defendant breach of duty that was not too remote a consequence of the breach' In order for Crispin to successfully claim in negligence, he has to prove that a Duty of Care existed between Sun Loungers Syndicate and
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,
Discuss in what circumstances the action for breach of statutory duty is available. Do you agree that it is difficult to identify any intelligible principles in this area?
"[S]uch is the difficulty of identifying any intelligible principles in this area [breach of statutory duty] that Lord Denning has remarked - perhaps not entirely in jest - that '[t]he dividing line between the pro-cases and the contra-cases is so blurred and so ill-defined that you might as well toss a coin to decide it' (Ex parte Island Records Ltd [1978] 1 Ch.122 at 135)." Discuss in what circumstances the action for breach of statutory duty is available. Do you agree that it is difficult to identify any intelligible principles in this area? "The common law principle of delictual liability may be supplemented or supplanted by delictual liability for breach of a statutory duty"1. In recent times the volume of legislation emanating from parliament has been ever increasing and so the area of statutory liability is of real importance and relevance to a vast number of people especially in terms of employment and safety within employment. As is evident from the name, statutory duties are different from the common law duties but an action for the breach of a statutory duty may be raised in conjunction with, but distinct of that of a breach of duty at common law as stated by Lord Wright2 who said "A claim for damages for breach of a statutory duty....may stand or fall independently of negligence". The rationale behind that being, that it may be the case that a different standard
tort law negligence coursework Allegra v Pure Analysis
February 2006 LLB (hons) Full time; Year One. (See separate sheet for full page of references) Tort Coursework; House of Lords Judgment. Allegra v Pure Analysis The case before me has previously been rejected due to doubts over the existence of the vital element of a duty of care owed by the defendant to the claimant. Lord Macmillan in Bourhill v Young defines duty of care1 and Howarth2 criticizes this concept of requirement of duty. The duty of care is the vital element in the tort of negligence as a duty of care cannot be breached if it was not owed to the plaintiff in the first place. We must also consider the implementations of the Human Rights Act 1998, especially Article 63. Lord Atkin in the case of Donaghue v Stevenson4 offered us his "neighbour principle" to help us to establish a duty of care. He shows us that there is a basic requirement for foresight of harm to the claimant as well as proximity in order to be labeled a 'neighbour.' Lord Atkin also helps to explain this requirement of proximity when he says that neighbours are "persons so closely and directly affected by my act that I ought reasonably to have them in mind to the acts or omissions in question." In making their report, we must consider whether or not the defendants in this case ought reasonably to have foreseen the harm caused to the claimant and whether there is sufficient proximity for the
To what extent should the law concerning the recovery of damages in negligence for psychiatric illness be liberalized
To what extent should the law concerning the recovery of damages in negligence for psychiatric illness be liberalized? In this essay we are asked to discuss on the main tort issue of recovery of damages in negligence for psychiatric illness and to what extent should to be liberalized. This paper in order to give an adequate analysis is going to be separated in the following areas: a. The Present Law. b. Criticism on the principles of the Present Law. c. Law Commission Report No 249 on "Liability for Psychiatric Illness" (1998). d. Conclusion. a. The Present Law: Since 1901 when a Divisional Court ruled that a pregnant barmaid could recover damages for nervous shock caused by her fright at seeing a pair-horse van being driven into the bar where she was serving1, English law has recognized a cause of action for psychiatric illness. The principles that make up the scope of liability in negligence for psychiatric illness have evolved over the century and it may be broadly summarized as follows. Firstly, there is a general precondition for recovery. It is well established law that there is no compensation for mere grief and distress in the absence of other injury: "In English law no damages are awarded for grief or sorrow caused by a person's death...Damages are however recoverable for nervous shock, or...for any recognizable psychiatric illness caused by the breach of duty
negligence caustion assult battery
Tobias' threatening attitude towards Edward requires a consideration of what constitutes an assault. An assault is defined as an act which intentionally causes another person to apprehend the infliction of immediate, unlawful force on his person.1 When Tobias phoned Edward, and utter the words "I am going to kill you and ensure that you never play ruby again". These words alone may be no more than mere abuse, and the content of his words are insuffient to amount to a threat. If words are to account to assault, the Burden of proof is on Edward to show that he reasonable appended harm. If the words themselves do amount to a threat, there are no legal authority that words alone could constitute an assault.2 However this may now be challenged in the House of Lords case in R v Ireland.3 It was accepted that a silent phone call could amount to an assault. Accordingly, it is now clear that the use of words alone may be an assault taking into account all the surrounding circumstances. If Tobias words are capable of amounting to an assault, there remain the issue that there cannot be an assault unless the threat is immediate. The fact that Tobias utter these words to Edward over the phone rather than in person or face to face, a reasonable person would hold that, Tobias is not in a position to inflict immediate and direct harm on Edward. Thus, Edward wasn't under immediate threat
Liability for a wrong that is imposed without the necessity of proving intention or negligence on the part of the Defendant.
Tort Law Coursework 2 'Liability for a wrong that is imposed without the necessity of proving intention or negligence on the part of the Defendant'. The concept of strict liability does not require the plaintiff to prove the defendant was negligent; a person is liable despite the absence of fault. Fault liability on the other hand requires the proof that the defendant was negligent regardless it was intentional or not. This essay will explain the concept of strict liability with reference to the torts of negligence and trespass, and assesses its appropriateness to a fault based system that is asserted, is intended to establish normative rules for the conduct of society. The concept of strict liability in tort has existed in the common law for centuries. It was not until the domination of the fault based system that strict liability was out of the ordinary. Strict liability is defined as 'Liability for a wrong that is imposed without the necessity of proving intention or negligence on the part of the Defendant'. Oxford concise Dictionary of Law The aim of trespass is to retain the claimant's right to be free from interference, either by his or her person, property or goods. 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
Strict liability offences.
"Strict liability offences are an expression to the general rule that the prosecution has the burden of proving that a person excused of a crime possesses the relevant guilty mind. However modern day society dictates that a number of situations should be excluded from this requirement" Explain in the light of the above comment whether you agree that the creation of strict liability cases can ever be justified. With most cases in the legal system, the prosecution will normally have to establish that an accused has carried out the prohibited criminal act (actus reus) with the accompanying guilty mind (mens rea). However there are some crimes which do not require proof of mens rea - Intention, recklessness and even negligence are offences of strict liability. The defendant has no excuse no matter how careful he has been, simply causing the prohibited consequence will be sufficient to convict. This is shown in the case of Callow v Tillstone (1900), A butcher asked the vet to examine a carcass, the vet gave the wrong recommendation although the vet was unaware of it. The butcher sold the meat, although the butcher had taken all the steps he was still convicted of endangering people. 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
