...Introduction This assignment will establish the elements needed for a person to be held liable in Tortious Law. Once the elements have been established they shall then be used to determine if the individuals in each scenario would be held liable. Tort Law Tort Law in layman’s terms is a civil wrong. It does not necessarily need to be an illegal action but an action that has consequently caused harm or suffering to another. The main outcome for a person claiming they have been a victim of a tortious act is compensation. For a successful tort claim the three main elements need to be present and their needs to be a standard of proof; a balance of probabilities. The Necessary Elements As followed in Donoghue v Stevenson [1932] AC 562 i. Duty of Care ii. Breach of Duty iii. Damage caused by Breach of Duty. Causation This coincides with the three part test established in case that leads precedent in tortious liability, Caparo Industries Plc v Dickman [1990] 1 All ER 568. i. Foreseeability of Damage ii. A relationship characterised by the law as one of proximity or neighbourhood. iii. A relationship characterised by the law as one of proximity or neighbourhood Duty of Care Duty of care prior to 1932 was restricted to situations where a relationship had already been established such as a doctor-patient relationship. However in Donoghue v Stevenson that duty of care became adapted. Lord Atkin formulated a principle known as the ‘neighbour test’; ‘take reasonable care...
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...QUESTION. “The law tampers with the But for test of causation as its peril.” -Lord Brown; Sienkiewicz v Greif (UK) Ltd (2011) The Bust for test of causation is said to be fraught with difficulties. How has the law developed to overcome these difficulties? INTRODUCTION Negligence in the law of tort is the failure to exercise the care that a reasonably straight person would exercise in such like circumstances. In tort law, this area of negligence involves harm caused by carelessness and not by intention. The tort of negligence structures a standout amongst the most element and quickly changing zones of obligation in the present day law. Its rise in the 20th century shows the pressure of the social and economic changes on the traditional ways of legal redress for interference with protected interests. The reasonable structure of carelessness is very adaptable and fit for general application. These components have permitted the courts to use the tort in the setting of novel cases for pay. On the other hand, the development of carelessness has not supported the extension of risk and throughout the years, courts have been putting a few limitations on this degree. The tort of carelessness does not right now appear to be set upon some foreordained way of growth as it once had all the earmarks of being. The modern history of tort law started with the groundbreaking judgment of Lord Atkin in Donoghue v Stevenson where Mrs Donoghue went to a cafe with a friend. The friend...
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...STAGE ONE: IDENTIFICATION OF THE ISSUES APPARENT I have been asked to advise my client as to his/her prospect regarding. The relevant material facts contained in the excerpt provided include……… From initial viewing of the hypothetical facts I propose that there are numerous legal issues contained: STAGE 2: IDENTIFICATION AND EXPLANATION OF THE APPLICABLE LEGAL RULES I assert that the relevant rules that apply are found in the law of torts(with specific identification to the tort of negligence, a tort that emerged as of primary importance as per the landmark decision in the House of Lords in Donoghue v Stevenson (1932) AC 562.) and statutory provisions of the Civil Liability Act 2002 (WA) which have been enacted to either clarify or modify the common law rules that determine liability for negligence. As a broadly conceived scope, the underlying principle of negligence is that a defendant may be liable in a wide range of circumstances for failure to take reasonable care which causes harm to a plaintiff’ protected interests. Now, wrongful or careless behaviour is not always actionable in negligence. The defendant will only be liable if the plaintiff can prove that three essential requirements are satisfied: Three essential requirements that must be satisfied in order to establish liability in negligence: (a) That the defendant owed the plaintiff a duty of care * Pre – existing relationship will create a duty of care. OR * “Neighbour principle”...
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...Title : “To impose a duty of care in negligence on the police for their failure to prevent a crime taking place, even in situations where both the suspect and victim were (or ought to be) known, is a tremendously difficult task.” Why is it so notoriously difficult to bring successful negligence claims in such situations? The tort of negligence is defined as the breach of a legal duty to take care resulting in damage to claimant which was not desired by the defendant. According to Blyth v Birmingham Waterworks Co it is the “omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”. But the point is that the Law of negligence has no statutory basis. It has developed through a huge number of cases. This means that whenever considering a duty of care exists in any given situation the courts have flexibility to take public policy consideration into account and steer the evolution of the tort of negligence accordingly. This flexibility has also allowed to protect certain classes of defendant from liability in negligence. The traditional approach adopted by the courts has been to refuse an action against the police either on policy grounds or because there is no proximity between the injured person and the police agent. Since the implementation of the Human Right Act 1998 it is possible to bring a direct action under...
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...Torts Assignment PART 1 1) Does Autumn Bay High owe a duty of care to Persephone and Aphrodite? Consider the common law as well as any impact that the Civil Liability Act 2002 (NSW) may have on the common law. The main considerations that have to be taken into account when deciding whether Autumn Bay High owed a duty of care to Persephone and Aphrodite are the reasonable foreseeability of nervous shock and whether their duty of care was non-delegable. Under the Civil Liability Act 2002 (NSW) “the defendant owes a duty of care to the plaintiff if they ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognized psychiatric illness if reasonable care were not taken”. It has been established through Tame v New South Wales & Annetts v Australian Stations Pty Limited[1] that reasonable foreseeability of mental harm is a precondition of the existence of a duty of care. Taking the provisions of the Civil Liability Act 2002 (NSW) into account, the fact that the school is taking its students on a ski trip already establishes a general duty of care. It is reasonably foreseeable that such an activity poses the possibility of serious injuries if adequate supervision is not provided. In addition to this, it is not fanciful or far-fetched that witnessing a horrific physical injury to a fellow student can cause sudden shock and consequential mental harm to a person. While Aphrodite witnesses the actual accident, and sees...
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...Negligence In order to advise XXX any claims he may have in torts, it is necessary to determine if such negligence exists. To sue for negligence, the burden of proof is on the plaintiff who has suffered damage to establish the following four prerequisites based on the evidence: 1) A duty of care owed by the defendant to the plaintiff; 2) Breach of the duty of care by the defendant; 3) Plaintiff suffered damage resulting from the breach; and 4) The damage suffered was a foreseeable consequence of the breach that the connection between the damage and the breach were not too remote. 1) The first question of fact is “Did the defendant owe the plaintiff a duty of care?” Under the Common Law: Donoghue v Stevenson Under the common law, whether or not the defendant owed to the plaintiff a duty of care is based on the neighbour principle established in the precedent case of Donoghue v Stevenson [1932], which affirms that a sufficiently close relationship (neighbour relationship) between the parties can give rise to a duty of care. According to Donoghue v Stevenson [1932], neighbour refers to the persons who are so closely and directly affected by one’s act that one ought reasonably to have them in contemplation as being so affected when directing mind to the acts or omissions. In other words, a duty of care arises when persons in a reasonable contemplation are ought to take reasonable care to avoid acts or omissions...
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...teacher Md. Ashiqur Rahman Bhuiyan for his exemplary guidance, monitoring and constant encouragement throughout the whole semester. Lastly I would like thank my respective parents, siblings, friends and colleagues to support and helped me to successfully complete full assignment . Table of Contents Contents TORT: 3 Intentional Tort: 3 Strict Liability: 3 Negligence: 4 Duty of care: 4 Breach of Duty: 5 Causation: 6 Vicarious Liability: 8 Reference: 12 LO 3 Understanding the principles of liability in negligence in business activities. TORT: The liability of the violation of a fixed law, law arises primarily; this duty is towards persons generally and its breach is capable of redress by action unliquidated damages. This is a civil wrong, in the sense that it is committed against an individual, not the State. The essence of tort law is that a person has certain interests that are protected by law. These interests can be protected by a court granting a sum of money, known as damages. There are increasingly limited circumstances where the victim of a tort may avail himself of self-help. Types of Tort: There are basically three types of tort:...
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...Law of tort is a civil wrong other than a claim for breach of contract; and for which a right civil action for damages may arise. Negligence is defined by Winfield and Jolowicz as “Tortious liability arises from the breach of duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”. (Roger, W.V.H., 2006) In Malaysia, the law of tort is largely derived from common law in England. In the law of tort, negligence is the most widely used tort in the legal system. In order for a claimant who is seeking for remedy to successfully bring a claim in a negligence case, they must first prove these 3 factors: * The defendant held a legal duty against the claimant. Therefore, the defendant owed the claimant a duty of care. * The defendant had breach of that duty. * The claimant are suffering damages resulted in that breach of duty. These three factors will sometimes be shortened as duty, breach and damage. Duty of care This important factor of negligence came from a famous case of Donoghue v Stevenson (1932). In this case, the claimant, Ms Donoghue went to the Minchella’s Wellmeadow Café in Paisley with her friend. Her friend ordered a bottle of ginger beer that was contained in an opaque bottle. When she poured the remained ginger beer, a decomposed snail came out with her ice cream. Ms Donoghue became ill as she has consumed the contaminated beer. She could not sue the café under the rule of...
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...NEGLIGENCE Tort Law is a field that encompasses material of considerable breadth and diversity and whose existence, as a reflected in individual actions seeking civil redress for injuries nor arising out of contractual relations can be traced can be traced back to primitive societies. (White, 2003 p.23) A ‘tort’ is a Norman word for a ‘wrong’ but ‘torts’ have typically been distinguished from crimes and from ‘wrongs’ identified with contractual relations. Tort Law is concerned with civil wrongs not arising from contracts. We can see the shifting character of Tort Law in nineteenth and twentieth century America as deriving from the shifting ideas of legal scholars and judges particularly ideas about the civil responsibilities of a person to his or her neighbors in society and about the manner in which society should respond to injuries and injured people. An independent identity for Torts late in the nineteenth century is the affection of tort doctrines, especially negligence, to the problems produced by industrialization. Industrialization has played a part in creating the climate of intellectual legal opinion and it affected torts as an independent category of law. Some certain lawyer-intellectuals in the development of legal doctrine in America, who were academicians after 1870, significantly affected the content of tort rules and doctrines and also affected the changing state of tort law in America. There are many categories of Torts. It divided three...
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...(119324) Yeow Jun Heng (119383) Submitted to : Date : 1st December 2014 Content Introduction- Tort Law…………………………………………..................................3 Trespass……………………………………………………………………………..4-6 Nuisance…………………………………………………………………………....7-12 Negligence………………………………………………………………………..13-14 Distinguishing nuisance and trespassing to land……………………………………15 Distinguishing nuisance and negligence…………………………………………16-17 Discussion……………………………………………………………………………18 Reference…………………………………………………………………………......19 INTRODUCTION Tort Law Tort law is a body of rights, obligations and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor. Tort denotes a breach of duty imposed by law. The nature of the duty is to act as a reasonable person exercising reasonable diligence. Tort exceeds the obligation of a party under contract. The duty could be to the other party in a contractual relationship, as well as to any third party who, it is reasonably foreseeable, would get affected by the actions of a persons. There are three constituents of tort: 1. There must be a wrongful act committed by a person. 2. The wrongful act must give rise to...
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...Tort Law Case I. The fireman car accident The fireman’s car was driving at a very high speed. This excess of speed was ordered by his supervisor. The car ahead, under the pressure of the fireman’s car had become agitated and by trying to make room for the fire engine, collided with a lamp post. The driver of this car had no security belt. We have to see if the fireman is liable. To be liable, three things are needed : a damage, a fact, a causation between them. According to the principle of tort law, article 1:101 of European Principle of Tort Law, (the strict liability) as soon as the victim proved that he suffers a damage, it’s needed to have compensation. Is there a damage ? Peter has collided and had to be took to the emergency. Based on article 2:102 (2) of European Principle of Tort Law, a bodily integrity enjoys the most extensive protection. If no serious hurt had been seen, we can assume that it exists a little traumatism or maybe a light physical damage and therefore this is a bodily damage. A damage exists, so the victim, Peter, doesn’t have to prove a fault, according to the strict liability principle. We need to identify the fact. By driving too fast, with the flashing lights, with the bell sounding, the fireman put a pressure on Peter who panicked and by trying to make room for the fireman, he collided with a lamp post. Are the fact and the damage in relation ? To identify the factual causes, we utilize the “but...
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...Briana Lyles Torts and Product Liability 11/22/2011 University of Maryland – University College AMBA 610 – Section 9040 Dr. Kathleen Locklear Introduction This paper will discuss two types of law and how they apply to two separate lawsuits. According to The Legal Environment of Business: A Critical Approach by Kubasek, Brennan, and Browne, Tort law is defined as “an injury to another’s person or property.” Tort Law has many goals that are in place to assist injured person through monetary compensation and even mental compensation. Additional goals of Tort Law are to discourage private retaliation, promote civility, and deter wrongful actions (Kubasek et al., 2009). Tort Law also tries to ensure that the plaintiff receives compensation for damages. Another type of law explained in The Legal Environment of Business: A Critical Approach is Product and Service Liability Law, which was evolved from Tort Law. Manufacturers of products and givers of service owe a level of responsibility to the consumers of their product or service. The liability laws hold manufacturers accountable if the consumers are somehow unable to use their product without it causing harm to them. The cases discussed in this paper involve Tort Law violations as well as Product and Service Liability law violations on the part of the defendant in both cases. The Facts A CAT scan was performed on Judith Haimes by Dr. Judith Hart, a physician who works at Temple University. Before the CAT scan was performed...
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...INTRODUCTION The word ‘Tort’ has been derived from a Latin word ‘Tortum’ which means crooked or twisted act. This word is a French equivalent of English word wrong and of the Roman law term ‘delict’. It is a civil wrong independent of contract for which the appropriate remedy is action for unliquidated damages. Person committing a tort is called tortfeasor and the act is called tortious act. In this piece of research project, we will analyze which one is more authentic or valid, whether law tort or law of torts. Jurists have debated this question for a long time. It is generally asked in the form, “is there a law of tort or only a law of torts?” Those who call it Law of Tort (Winfield) base their understanding on the Latin maxim ‘ubi...
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...reasonably foresee would be likely to injure your neighbour”? (Donoghue v Stevenson). Incremental Approach: 1. type of relationship between the parties; a) the vulnerability of the plantiff, b) degree of control of defendant, c) special knowledge of the defendant of the plaintiff’s situation. 2. the type of loss or injury (physical, psychiatric, economic) 3. policy and; 4. physical, casual and circumstantial proximity may still be used (Kirby, Modbury triangle shopping centre pty ltd v Anzil) “proximity is the best notion yet devised by the law to delineate the relationship of negibour” Proximity test involves a notion of nearness in the relationship between the parties. as a principle stated in Rylands v Flectcher, “identifying the categories of case…rather than a test for determining whether the circumstances of a particular case bring it within such a category, either established or developing”. Sullivan v Moody applied tradtional common law approach “…although not determinative, is instructive”. Where duty of care will fail Policy(whether a duty of care exists. Public policy does not allow the following area, 1. legal practitioners in the performance of court work...
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...Tort Law of the People's Republic of China (Adopted at the 12th session of the Standing Committee of the Eleventh National People's Congress on December 26, 2009) Table of Contents Chapter I General Provisions Chapter II Constituting Liability and Methods of Assuming Liability Chapter III Circumstances to Waive Liability and Mitigate Liability Chapter IV Special Provisions on Tortfeasors Chapter V Product Liability Chapter VI Liability for Motor Vehicle Traffic Accident Chapter VII Liability for Medical Malpractice Chapter VIII Liability for Environmental Pollution Chapter IX Liability for Ultrahazardous Activity Chapter X Liability for Harm Caused by Domestic Animal Chapter XI Liability for Harm Caused by Object Chapter XII Supplementary Provision Chapter I General Provisions Article 1 In order to protect the legitimate rights and interests of parties in civil law relationships, clarify the tort liability, prevent and punish tortious conduct, and promote the social harmony and stability, this Law is formulated. Article 2 Those who infringe upon civil rights and interests shall be subject to the tort liability according to this Law. "Civil rights and interests" used in this Law shall include the right to life, the right to health, the right to name, the right to reputation, the right to honor, right to self image, right of privacy, marital autonomy, guardianship, ownership, usufruct, security interest, copyright, patent right, exclusive right...
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