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 existence of a duty of care is ultimately a question of policy'. Discuss.
'The existence of a duty of care is ultimately a question of policy'. Discuss. In previous years, the concept of duty of care has been applied by various courts to act as a control device in order to determine and limit the categories of who can bring claims in negligence and in what circumstances. Worryingly, judges have shown the ability to strike out cases by deciding that a case is non-actionable and this ability has mostly been exercised in cases concerning public policy. It is here where it is seen that a duty of care will only exist if it does not run contrary to the ideas of public policy. Policy has played an important part in limiting the scope of the duty of care. So is the existence of a duty of care, ultimately a question of policy? To a certain extent, it can be seen that the existence of a duty of care, is ultimately a question of policy. Until very recently courts have has discretion as to whether or not to attach a duty of care to a particular public body and it is these decisions which have been influenced by policy arguments and decisions. This approach has been adopted particularly where there is an overriding public or general interest which awards defendants a certain degree of immunity from litigation. Courts have often justified their actions of not imposing a duty of care upon public bodies using arguments that reflect their concerns should a
Problem question on Occupiers liability Act 1957
TORT - NON-ASSESSED SPRING WORK Question Ingrid, a landlord, lets two adjacent flats to Jane and Karl. Jane is an amateur inventor who, as Ingrid is aware , uses the kitchen of her flat to conduct experiments in producing an artificial substitute for petrol. At its present state of development, Jane's invention causes headaches in humans and is fatal to plants. Unfortunately, even before Ingrid initially acquired the building, there were cracks in the partition wall between the two flats and the fumes from Jane's petrol-substitute penetrate through the walls into Karl's flat. Karl complains of headaches, but Jane says that her invention will save Western civilisation. Karl breaks into Jane's flat while she's out, takes the petrol substitute and deposits it in Lucy's garden, a poor old lady who lives nearby. The fumes kill all the vegetation in the adjoining gardens but, when her neighbours complain Lucy says she's too poor and old to do anything about it. When they reach Max's neighbouring land the fumes penetrate a gash in the bark of a tree which overhangs the highway. As a result, 2 months later the branch falls onto the highway and damages Oliver's car. Advise the parties Response Ingrid The Occupiers Liability Act 1957 is concerned with liability of an occupier of premises to his or her visitors. It is essential to establish whether Ingrid qualifies as an occupier
Tort Essay.
Tort Essay Gerry, a construction worker, injures his right leg when the ladder he is using at work collapses, causing him to fall. His employer Harry accepts responsibility for the accident. Gerry is told by his doctor to take six months off work in order to recover; he also warns him that in future he will always suffer from a slight limp because of the fall. Shortly before he is due to return to work, Gerry is hit when crossing the road by a car carelessly driven by Ingrid. Gerry's limp did not contribute to the accident. Gerry's right leg is further injured, and has to be amputated. Discuss his rights against Harry and Ingrid. The issue that needs to be discussed under the tort of negligence in this situation is that of causation. This is because for both defendants a duty can be established and also a breach of that duty can be shown. With regard to Harry, he is the employer of Gerry and therefore owes him a duty of care in the workplace. Harry admits a breach of that duty and this can be shown in the problem where Harry "accepts responsibility for the accident". With regard to Ingrid, she is a driver on the road and thereby owes a duty of care to others whilst driving. There is a breach of this duty as expressed in the problem where Gerry is hit by a "car carelessly driven by Ingrid". Since both a duty and a breach can be established for both defendants
The tort of negligence relating to claims for psychiatric injury.
Until relatively recently, the tort of negligence relating to claims for psychiatric injury was very uncertain. However, in recent times, this area of the law has become slightly more certain with the laying down of various guidelines and criteria governing whether an individual can recover damages as a result of witnessing an event which causes them some form of psychiatric injury. As a result, there are various issues connected with whether a/various claimant(s) can recover damages (for psychiatric injury) as a result of a defendants' negligence and these will be looked at in depth. However, before the compensation claims, of the various individuals involved, can be discussed, it maybe necessary to define precisely what is meant by (negligently inflicted) psychiatric injury. Psychiatric Injury is defined as: 'a sudden assault on the nervous system' or 'a sudden appreciation ... of a horrifying event, which violently agitates the mind'1 These definitions suggest that the psychiatric injury must be shock induced i.e. a traumatic event which has an impact (there and then) on the mind. When assessing a person's claim for compensation for psychiatric injury it is important to make a number of distinctions. First, is the person claiming a primary or secondary victim and secondly, the type of shock caused - is it long or short term. The first person seeking
The tort of negligence.
Tort coursework In the tort of negligence three things need to be proved in order for an action to succeed, the first being that the defendant owed a duty of care to the plaintiff, the second being that the defendant breaks that duty of care within the standard of care required by law and thirdly this breach of duty of care results in damage to the plaintiff. This damage must be recognised by the law.1 In the case of Donoghue v Stevenson2 it was said that " 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 reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question."3 Rogers believes that this "statement must be the most influential in any decision on any subject in the history of the common law in England."4 Rogers believe is generally very true as the main concept of negligence comes from that case and that statement. Following this case came the case of Dorset Yacht Co. Ltd. V Home Office [1969]5 where Lord Denning stated "at bottom a matter of public policy which we, as judges, must resolve. This talk of 'duty' or 'no duty' is simply a way of limiting the range of
"A duty of care arises not merely when damage is reasonably foreseeable, but when it is just and reasonable to impose liability" Critically discuss.
INTRODUCTION As seen occurring for the past decade, the doctrine of duty of care occupies principles that are disproportionate to the importance in tort cases which comes to court. Therefore, where decisions have been appealed and overruled this would affect the whole structure of development of negligence law. Every potential new duty of care allowed has the effect of increasing the numbers of tort cases being brought in the future. This proves that tort plays an important role in society. As a result of such circumstances, the courts are faced with considerable problems having to decide between doing justice in individual cases or prevent a vast increase in the number of future cases, which are policy reasons1. Therefore, to discover whether duty of care arises when it is reasonably foreseeable, or whether other policy reason would be taken into account to impose such duty, it is necessary to view the development of the law with regards to landmark cases as tort law is largely base on common law rather than statute base. The aim of the discussion would be towards how the courts create requirements and implications to impose duty of care through the evolving progression of principle ORIGIN OF NEGLIGENCE Negligence is a universal concept in the legal system and is largely concern with compensating people who suffered damage as a result of others' carelessness. But as a
To what extent do principle and policy affect law?
"Duty is the primary control device which allows the courts to keep liability for negligence within what they regard as acceptable limits and the controversies which have centred around the criteria for the existence of a duty reflect differences of opinion as to the proper ambit of liability for negligence". [Winfield & Jolowicz, Tort, 17th edn, 134] Discuss, with reference to 3 cases which you have studied. The first element of negligence under Tort Law is the existence of a legal duty of care. This is, essentially, the relationship between the defendant and the claimant by which there is an obligation upon the defendant to take proper care to avoid causing injury to the claimant. The leading case in this area of law is undoubtedly Donoghue v Stevenson1[1]. In this situation there was no binding contract between the two parties, however liability was found due the fact that product sold caused material physical damage to the claimant due to the negligence of the defendant. Here, the already established manufacturer, consumer relationship applies. Though, Lord Aitkin then formulated the "neighbour principle" to limit the scope of future claims on the grounds of what the courts regard as acceptable. Only when this principle could be applied, could there be a duty of care. However, various legal journals suggest that Donoghue v Stevenson was fabricated slightly by the
How do the cases discussed in unit 3 contribute to our understanding of the aims of tort law?
How do the cases discussed in unit 3 contribute to our understanding of the aims of tort law? There are various disparate aims of tort law and they are exercised in different cases and for different reasons. One of the aims of tort law is known as loss spreading and this basically seeks to distribute loss so that liability falls on the stronger party. In the case of Nettleship v Weston, the claimant N was held not to have voluntarily contributed to the harm done because he had checked out the issue of insurance. The learner driver was also held liable because she owes a duty of care same as any experienced driver so she could not argue that she was trying her "incompetent best". In this case, Lord Denning also held that morally, the learner drive is not at fault but legally, she is held liable because she has insurance and it is therefore fair that the burden should fall on her. This embodies a new aim of tort law which is "on whom should the risk fall?" This case helps to add to our understanding, different aims of tort law. C. Harlow has described tort as having various disparate aims. Under the heading of loss spreading, "Atiyah suggests that the principal function of tort is 'social insurance' ". This can be observed in the above case and it is basically a situation whereby the courts seek to place liability on big companies for instance or persons who are better able to
Law For Business.
Law For Business 15/02/01 Outcome 2 Chris Lundie Assessment - Part 2 The Maxwell's could raise a claim against the council for being vicariously liable for the employee's actions (Jonathan Wright's). They could claim under Professional Negligence stating that they both suffered a pecuniary loss (pure economic loss - structural repairs estimated £14,000 + extra travelling to work at 150 miles a day) as a direct result of Jonathan's negligent misstatement. In order to do this Stephen and Lesley would need to prove the following: - Show that there was a duty of care owed to them by the council. Regarding negligence there is only one standard of care and that is to take reasonable care in the circumstances. They must then prove that there was a breach of the duty of care owed to them, and through the young surveyor's negligence they suffered a financial loss, and that the council is vicariously liable for the loss. An employer is liable for the wrongful acts or omissions of an employee provided the act is done within the scope of employment. In this case Jonathan prepared a valuation report as instructed, for the council and this would therefore be regarded as being within the scope of employment. Referring to the case Lister v Romford Ice and Cold Storage Co (1957) AC 555 then if Stephen & Lesley's case were to be successful in claiming from the council for loss