...breached the duty, his breach was the actual and proximate cause of her injury and that she suffered actual damages. Special Duty- Violation of Statute-Negligence Per Se A special duty of due care can be established by a violation of a statute that bans running a red light. This is known as negligence per se. The issue is whether the “a statute in this jurisdiction makes it a misdemeanor to run a red light” created a duty. The statute (intent of the legislature) establishes the duty if plaintiff can prove two requirements. Fist, the plaintiff must be within the class of persons the statute was intended to protect and second, the injury must be of the kind that the statute was intended to prevent. Negligence per se establishes both duty and breach. Susie must show that she was within the class of persons the statute was intended to protect. The legislature probably intended to protect all pedestrians crossing the street in a crosswalk. This would include victims like Susie who was struck by a car while crossing the street in the crosswalk. Tommy may argue that he did not see the red light however traffic lights do not go from green to red because the yellow signal gives notice to the light changing. The statue was designed to protect pedestrians from getting struck by cars and providing them a safe way to cross the street. The second requirement, the legislature likely intended the law to prevent injuries caused by cars while pedestrians are crossing the crosswalk. It is likely...
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...“DAMAGE AS A CONSTITUENT OF TORT LAW” INTRODUCTION The word tort is of French origin and is equivalent of the English word wrong, and the Roman law term delict. It is derived from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. It is commonly used to mean a breach of duty amounting to a civilwrong. Of the various attempts to define tort, Salmond's definition is rather popular. Salmond defines tort as a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. A tort arises due to a person‟s duty to others in generally which is created by one law or the other. A person who commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one, they are called joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued jointly and severally. The principle aim of the Law of tort is compensation of victims or their dependants. Grants of exemplary damages in certain cases will show that deterrence of wrong doers is also another aim of the law of tort. OBJECTIVES OF LAW OF TORTS i. To determine rights between parties to a dispute. ii. To prevent the continuation or repetition of harm e.g. by giving orders of injunction. iii. To protect certain rights recognized by law e.g. a person's reputation or good name. iv. To restore property to its...
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...Law Society of Western Australia – Personal Injury Law Update 8 October 2013 BULLYING AND PSYCHIATRIC INJURY; RECENT AND PROPOSED DEVELOPMENTS IN THE LAW Geoffrey R Hancy B.Juris(Hons), LLB(Hons), B.Ec(UWA), LLM(Melb) geoff@hancy.net www.hancy.net Introduction 1 My paper covers: 1.1 Amendments to the Fair Work Act 2009 (Cth) to allow the Fair Work Commission (FWC) to deal with bullying claims; 1.2 Recent court decisions on claims for damages for psychiatric illness; 1.3 The nature of a recognisable psychiatric illness. Fair Work Act 2009 (Cth) 2 On 28 June 2013 the Fair Work Act 2009 (Cth) was amended to incorporate, among other changes, express provisions addressing bullying in the workplace. 3 These provisions will come into operation on 1 January 2014. They are found in a new Part 6-4 B – Workers’ Bullied at Work (sections 789FA to 789FL). Bullying 4 A worker is bullied at work if one or more individuals repeatedly behave unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety: s789FD. Reasonable management action carried out in a reasonable manner is not bullying: s789FD. Not to be copied without the express permission of the author -2- Criteria for and orders that can be made 5 If the Fair Work Commission is satisfied that : 5.1 The worker has been bullied at work; and 5.2 There is a risk the worker will...
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...Sometimes, the ACL tear does not require surgery and can heal with little intervention. But, ACL tears can also definitely require surgery, which can take up to 9 months to fully recover. This is why almost all football players who suffer ACL tears usually miss the whole season. So, one of the main treatments is surgery, and when the knee does not need surgery, then physical therapy helps in bringing the knee back to the original state. When the knee does need surgery, the way the surgery works is complicated. Basically, the surgeon makes a few incisions placed around the knee and places sterile saline to expand the knee. This makes seeing the knee easier for the surgeon to use. Then, small drills are inserted where the surgeon made other incisions. Small holes are drilled in the lower and upper leg bones where the bones come together at the knee joint. The surgeon then takes the graft and pulls the graft through the tunnels drilled in the upper and lower leg bones. Then, the graft is secured by the surgeon, and the patient is taken to a recovery room for a few hours. When the ACL tear does not require surgery, the most common treatment is physical therapy. Physical therapy will help return the knee to the knees pre-injury state. In...
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...company based out of Salt Lake City Utah. On May 19, 2016, the Black Diamond recalled Index Ascenders for climbing, including manufacturing codes from 4356 to 6015, because of a defect of the Index Ascender’s rivet holding the toothed cam releasing allowing the Ascender to slide on the rope or coming detached from the rope leading to possible injuries or death as a result of falling (U.S. Consumer Product Safety Commission). The recall was for both the right and left versions of the Black Diamond brand Index Ascenders, which are used as rope clamps for rock climbing and mountaineering to prevent falls. There were no reported injuries or deaths but there was a recall on the products urging consumers to stop use of the product and to return it for a free replacement. According to Seaquist (2012), in general most reasonably prudent people abide by laws put in place that impose a duty to not inflict foreseeable injury to others, which is known as the reasonable person standard. Liability for the tort of negligence may arise when someone fails to implement this standard of care. In regards to businesses, when there is negligence that leads to injury or death, a company can be sued for lots of money, lose valuable time, have there image hurt, and in some cases be completely ran out of business....
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...CANADIAN BUSINESS LAW “REASONABLE PERSON” Assignment # 2 GBMP 511-02 Dated: 18-04-2012 REASONABLE PERSON Question: What is the concept of “Reasonable Person” mean? What is the test that determines whether someone has met that test in law? The Concept: A Reasonable person is a hypothetical person who exercises qualities of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own interest and the interests of others. Defining "Reasonable" Being "reasonable" means having the faculty of reason, acting rationally governed by reason. The behavior can be called "reasonable" if the activities can be valued as fair, just, or equitable. The person must be honest, moderate, sane, sensible, and tolerable. "Reasonable" implies a certain standard of valuation. It is a standard for guiding conduct. Reasonable Person This phrase is a personification of the description of "reasonable". Thus, the "reasonable man or person" can be understood as a phrase used to denote a suppositional person who exercises those mentioned qualities which society demands as stated above. Applying the Reasonable Person Standard: The reasonable person does not always appear in the Process of evaluating human behavior. There are several judicial patterns demanding a judgment of reasonableness without expressly mentioning the reasonable man as a personification, such as: reasonable aids, care, diligence, doubt, compensation, (market) value...
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...she fails to act with reasonable care and another person suffers some harm as a result. If you have been the victim of negligence that has resulted in a personal injury or an injury to your property, you can file a negligence claim. In addition to knowing whether or not you have suffered harm due to someone else’s negligence, it is important you understand basic procedural rules to filing your negligence complaint. In order to prove a case of negligence, the person bringing the action (in this case Joe) must prove the following four elements: 1. That the person who caused the accident and injuries (Ferrari driver) had a “Duty of Care” to the injured person. Every driver in every jurisdiction has a duty to operate motor vehicles in a non-negligent manner, which means a manner that is not potentially harmful to person or property. As duties go, this one is relatively straightforward. Don’t drive in a manner that could potentially cause injury to person or property. Obey traffic laws, speed limits, and traffic signs; use your turn signals, etc. All of the little rules, laws and ordinances that drivers take for granted as common knowledge on a daily basis are attempts to codify the basic duty to drive in a non-negligent manner. 2. Joe must also establish that Ferrari Driver breached that duty by not exercising reasonable. A driver who operates their vehicle in a negligent manner -- a manner that could potentially cause harm to person or property -- has breached their basic duty as...
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...Defendant. Facts: Mellow Mushroom is an establishment that is known for serving beer to underage patrons. On June 7, 2000, Christian sat at Mellow Mushroom’s bar and drank an undisclosed amount of beer. Several witnesses who had seen him that night reported that Christian Lumpkin did not appear to be drunk while others stated that he might have been “mildly” intoxicated. Lumpkin left Mellow Mushroom at approximately 12:30 a.m. and drove to Seth Calloway’s house. Once there, Lumpkin and Calloway decided to buy some beer and visit another friend. They went to the store in Calloway’s Jeep, which does not have a passenger side door. Calloway drove while Lumpkin sat on the passenger seat. During the drive to their friend’s house, Lumpkin unbuckled his seat belt and began hanging out of the Jeep. At some point, Lumpkin lost his grip and fell out of the car. He was taken to the hospital and later died from his injuries. Lumpkin’s parents are suing Mellow Mushroom. Plaintiff’s Cause of Action: Negligence Issue: The issue is whether an establishment, which serves alcohol to underage patrons, is liable for injuries or damages resulting from the intoxication of the underage patron. Defendant’s Argument: Mellow Mushroom is not responsible for the injury and death caused by the intoxication of the underage patron. The Lumpkins cannot prove that Mellow Mushroom’s...
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...Kirti Thosar | 56 | THE WORKMEN’S COMPENSATION ACT, 1923 INTRODUCTION The passing of Workmen’s Compensation Act in 1923 was the first step towards social security of workmen. The theory of this act is that “the cost of product should bear the blood of the workman”. This Act provides compensation to certain classes of workmen by their employers for injury, which may be suffered, by the workmen as result of an accident during the course of employment. Object To provide Compensation to Workmen for accidental injury and occupational diseases arising during and in the course of employment. Applicability of Act This Act is applicable to all employments in which the ESI Act is not applicable. BASIC CONCEPTS “Dependent” means any of the following relatives of a deceased workman, namely: (i) A widow, a minor legitimate or adopted son, and unmarried legitimate or adopted daughter, or a Widowed mother; and (ii) If wholly dependent on the earnings of the workman at the time of his death, a son or a daughter who has attained the age of 18 years and who is infirm; (iii) If wholly or in part dependent on the earnings of the workman at the time of his death, (a) A widower, (b) A parent other than a widowed mother, (c) A minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or Illegitimate or adopted if married and a minor or if widowed and a minor, (d)...
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...to inflict bodily injury on the victim and knows that death is likely the result of the bodily injury. ( It combines both the elements contained in the second and third limbs of s 299, that is the intention to inflict a bodily injury and knowledge that death is likely as a result of this act) (c) the accused has intentionally inflicted a bodily injury that was sufficient in the ordinary course of nature to cause death of a person of the similar size, age and sex even though the accused did not intend or foresee death as a result of the injury inflicted. (d) It requires proof that the accused knew that the act was so imminently dangerous that it must in all probability cause death as well as the accused knew the act was so imminently dangerous that it must in all probability cause a bodily injury that was likely to cause death. s 299 of the Penal Code can be understood by looking at its different limbs. By looking at its first limb, it states that whoever who have committed the act of murder, should actually have carried out the act with the intention of causing death. This is very similar to that of s 300(a) that both this limb as well as s 300(a) emphasis the intention of the accused in carrying out the act which result in death. Therefore, the accused can normally be convicted under both this limb as well as this clause without much problem in proving their intention. The second limb of s 299 requires proof that the accused intended “such bodily injury” that is likely...
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...of obligations”. 1. DUTY OF CARE Gleeson CJ and Gummow J, the approach to determine a duty of care is to identify the “salient features” that combine to constitute a sufficiently close relationship to give rise to a duty of care. Reasonably foreseeable: - It is reasonably foreseeable that any carelessness on the part of the defendant could harm the plaintiff. Did the defendant’s act impart harm “that you could 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...
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...finds that her husband was not there, and after calling his cell phone, the teacher finds that her husband is safe and sound at home. It turns out that the principal had lied to the teacher because he was mad that she had rejected his advances for a date. In these facts, the teacher may have a claim against the principal for any emotional distress she may have suffered as a result of the principal lying. In torts, there are two types of claims that can be asserted for emotional distress: (1) intentional infliction of emotional distress; and (2) negligent infliction of emotional distress. A claim for negligent infliction of emotional distress is similar to intentional infliction of emotional distress, but only requires showing of negligence rather than intent. A cause of action for negligent infliction of emotional distress consists of (1) a duty of care owed by the defendant to the plaintiff, (2) breach of that duty by the defendant resulting in severe emotional suffering and (3) actual and proximate causation of severe emotional distress. The key aspect for a claim in negligent infliction of emotional distress is that physical injury or illness is necessary for recovery under this claim. If there is a physical injury, then the damages for the attendant’s emotional distress are recoverable as part of the physical injury. If there is a physical impact to the plaintiff, which does not cause actual physical...
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...termination was due to a voluntary dismissal by the initial plaintiff who changed her mind about her claim? To meet the first element –favorable termination- a plaintiff cannot rely on a settlement of the case that both parties agree to. Once the litigation ends by settlement there is no favorable termination for the purpose of pursuing a malicious prosecution. A favorable termination is satisfied by abandonment or dismissal and without any final determination merits. However there are preceding cases that require that adjudication on the merits is necessary for a determination that a termination was in the plaintiff’s favor. If there is a withdrawal of proceedings by the person who is bringing them it is considered a favorable termination in the plaintiff’s favor. In our case our client should succeed because the defendant dismissed the suit on his own. So our client will satisfy this element. The cases discussed below seem to agree on the main elements of malicious prosecution: (1) termination of the earlier suit in the plaintiff’s favor, (2) lack of probable cause for the suit, (3) malice on the defendant part, and (4) a special injury flowing from the earlier suit. Frey v. Stoneman, 722 P. 2d 274, 277 (Ariz. 1986); Young v. Motor City Apartments, 133 Mich. App. 671, 675, 350 N.W.2d 790, 792 (1984). Elements (2) and (3) are satisfied in our client’s case: The earlier suit lacked probable cause because our client had paid his storage fees, and the suit was presumably malicious because...
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...past few decades, more tort cases have been filed. A tort concerns civil wrongs and address the duty, breach and injury sustained to one individual as a result of another's conduct. The premise is that a person who is injured could be able to recover something from the person who injured him or her. Usually, in a tort case, injured parties typically seek monetary damages. In an educational setting, tort law is the prevalent area of the law that subjects educators to personal liability. There are a variety of torts, which can basically be divided into three types of torts: (1) intentional torts, the intent to do harm to a person, (2) negligent torts, no intent to do harm to a person but to fail to exercise proper care and (3) strict liability, actions that causes damages regardless if the person is not at fault or negligent. Of the three categories, intentional and negligent torts tend to be more common types of tort actions in school sports settings. However, the vast majority of tort liabilities applicable to school situations are based on negligence. The tort of negligence is an unintentional tort that focuses on an individual's behavior or actions. It differs from intentional torts, which focuses on an individual's state of mind or intent. Normally, it is quite difficult to find a school or a coach liable for a student's injury during a sporting event. Recovering compensation...
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...After being treated in the hospital for the injury and the pain he had to suffer significant monetary and medical expenses and so after getting discharged from the hospital he filed a suit against him. Furlow had been served with a complaint on the 1st of March, in response to the complaint filed against him he was...
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