...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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...Week 1- Law 122 : Why study law 1. Business decisions have legal consequences which affect profits and losses: * Some decisions impose liability, others create opportunities * Negative: dumping pollutants into environment * Positive: binding contractual party to promise 2. Risk mgmt. tool: Law sets the framework for risk, it gives you tools to manage the risk * Ex. Insurance, exclusion and limitation clauses, incorporation Dimensions of course 1. 2. Risk mgmt. 3. Legal reasoning: rules and analysis 4. Law/ moral dimensions What is law? * A set of principle and rules that courts will enforce * A way of thinking (or reasoning) about these principles and rules better description. Process determines legal reasoning * It is not just the result of a case that matters. The reasons for the result are where law happens. Law is bound up in the reasoning. So it is important to ask “why” and “how” not just “who won”. Law vs. Mortality Law: formally sanctioned, illegal behaviour Morality: informally sanctioned, moral behaviour 1. 2. Immoral but not illegal * Lying to friends 3. Immoral and illegal * murder 4. Moral but illegal Ethical perspective 1.1 pg.6 Can I watch someone drop without incurring legal liability? If I can legally do it,should i? Ethically is it okay? Ethical reasoning: * Focus on why something is ethically right or wrong...
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...may be categorized in several ways: one such way is to divide them into Negligence, Intentional Torts, and Quasi-Torts. The standard action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. Negligence actions include claims coming primarily from car accidents and personal injury accidents of many kinds, including clinical negligence, worker's negligence and so forth. Product liability cases, such as those involving warranties, may also be considered negligence actions, but there is frequently a significant overlay of additional lawful content. Intentional torts include, among others, certain torts arising from the occupation or use of land. The tort of nuisance, for example, involves strict liability for a neighbor who interferes with another's enjoyment of his real property. Trespass allows owners to sue for entrances by a person (or his structure, such as an overhanging building) on their land. Several intentional torts do not involve land. Examples include false imprisonment, the tort of unlawfully arresting or detaining someone, and defamation (in some jurisdictions split into libel and slander), where false information is broadcast and damages the plaintiff's reputation. In some cases, the development of tort law has spurred lawmakers to create alternative solutions...
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...NEGIGENCE In the 1928 edition of Bevan on Negligence stated that negligence is “it has to deal……with duties as they appear when the normal standard of performance is not attained…considering defaults in conduct, and only in the second place with the adequate discharge 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...
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...7 SPECIFIC TERMS IN A BUSINESS CONTRACT. 8 Analyze specific contract terms with reference to there importance and impact if these terms are broken using Mr. John’s contract for purchase of computers. 8 Justify the selection of methods/ techniques that Mr. John should use for the termination of contract with Mr. Bobs Company. 8 Apply and analyze the law on standard form contracts in the given scenario 9 Discuss the effect of exemption clauses in attempting to exclude contractual liability in the given scenario 11 LAW OF TORT IN BUSINESS ACTIVITIES AND PARTICULAR FORMS OF TORTIUOS LIABILITY. 12 Describe the nature of general tortuous liability comparing and contrasting to contractual liability 12 Explain the liability applicable to an occupier of premises in the given scenario 13 Discuss the nature of employer’s liability with reference to vicarious liability and health and safety implications taking Mr. Bobs Company as an example 13 Distinguish strict liability from general tortuous liability in the given scenario. 14 ELEMENTS OF THE TORT OF NEGLIGENCE 14 Explain and understand the application of the elements of the tort of negligence 14 Analyse the practical applications of particular element of the tort of negligence in the given scenario. 15 Reference: 16 Abstract The...
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...Business Torts Outline Fall 2009 (Mittleman) |Overview | |Plan of Attack for Answering Questions | |Contractual relationships, where one party alleges a tort. | |Economic Loss Doctrine | | | |Fraud: | |Intentional Fraud (false statement, concealment, omission) ...
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...IIED f) Tresspass to Chattels g) Conversion 2) PRIVILEGES (5 - 7) a)Consent b) Self Defense c) Defense of others d) Defense of Property e) Recovery of Property f) Necessity g) Authority of Law h) Discipline i) Justification 3) NEGLIGENCE (PAGES 7 - 11) a) History b) Elements of A Cause of Action c) A negligence formula d) Standard of care i) The RPP ii) The Professional iii) Aggrivated Negligence e) Rules Of Law f) Violation of Statute (NEGLIGENCE PER SE) i) Applicability of Statute ii) Effect of Statute g) Proof of Negligence i) Court and Jury: Circumstantial Evidence ii) RES IPSA LOQUITUR 4) CAUSATION IN FACT (11 - 12) a) Sine Qua Non b) Proof of Causation c) Concurrent Causes d) Problems Determining Who Caused the Harm 5) PROXIMATE CAUSE (12 - 14) a) Unforeseeable Consequences b) Intervening Causes c) Public Policy d) Shifting Responsibility 6) JOINT TORTFEASORS (14 - 17) a) Liability and Joinder of Defendants b) Satisfaction and Release c) Contribution and Indemnity d) Apportionment of Damages 7) DUTY a) b) c) d) e) OF CARE (17 - 19) Privity of Contract Failure to Act Pure Economic Loss Emotional Distress Unborn Children 8) OWNERS AND OCCUPIERS OF LAND (19 - 21) a) Outside the Premises b) On the premises 1) Trespassers 2) Licensees 3) Invitees 4) People outside the established Categories i) Children ii) Persons Privileged to enter outside of Owners consent iii) Rejection or merging of Categories c) Lessor and Lessee 9) DAMAGES (21 a) Personal b) Physical c) Punitive 22)...
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...IIED f) Tresspass to Chattels g) Conversion 2) PRIVILEGES (5 - 7) a)Consent b) Self Defense c) Defense of others d) Defense of Property e) Recovery of Property f) Necessity g) Authority of Law h) Discipline i) Justification 3) NEGLIGENCE (PAGES 7 - 11) a) History b) Elements of A Cause of Action c) A negligence formula d) Standard of care i) The RPP ii) The Professional iii) Aggrivated Negligence e) Rules Of Law f) Violation of Statute (NEGLIGENCE PER SE) i) Applicability of Statute ii) Effect of Statute g) Proof of Negligence i) Court and Jury: Circumstantial Evidence ii) RES IPSA LOQUITUR 4) CAUSATION IN FACT (11 - 12) a) Sine Qua Non b) Proof of Causation c) Concurrent Causes d) Problems Determining Who Caused the Harm 5) PROXIMATE CAUSE (12 - 14) a) Unforeseeable Consequences b) Intervening Causes c) Public Policy d) Shifting Responsibility 6) JOINT TORTFEASORS (14 - 17) a) Liability and Joinder of Defendants b) Satisfaction and Release c) Contribution and Indemnity d) Apportionment of Damages 7) DUTY a) b) c) d) e) OF CARE (17 - 19) Privity of Contract Failure to Act Pure Economic Loss Emotional Distress Unborn Children 8) OWNERS AND OCCUPIERS OF LAND (19 - 21) a) Outside the Premises b) On the premises 1) Trespassers 2) Licensees 3) Invitees 4) People outside the established Categories i) Children ii) Persons Privileged to enter outside of Owners consent iii) Rejection or merging of Categories c) Lessor and Lessee 9) DAMAGES (21 a) Personal b) Physical c) Punitive 22)...
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...2 Negligence: The Basic Principles of Duty of Care The arrangement of this and subsequent chapters Negligence is a large and amorphous subject, and all parts of the law on it are interlocking. It is often difficult to understand one part without having studied the whole, and therefore in arranging the material I have decided to set out the basic principles first, leaving the more sophisticated developments until later. Accordingly the next three chapters on duty, standard of care, causation and remoteness of damage aim to explain the basic negligence action, principally in relation to an action for personal injuries or property damage where the concepts are easiest to understand. More difficult duty problems, such as liability for statements or for pure economic loss, will be dealt with later. Duty is but one element in the tort of negligence, for it must be shown that not only was the defendant under a duty towards the claimant to be careful, but also that he failed to achieve the required standard of care and that that failure caused the damage, and finally that the damage was not too remote a consequence of the act. Duty is about relationships, and it must be shown that the particular defendant stood in the required relationship to the claimant such that he came under an obligation to use care towards him. This relationship is sometimes referred to as ‘proximity’. In cases of personal injury or damage to property the necessary relationship is established if the defendant ought...
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... * A system of representative democracy, using parliaments to make laws. See chapters 7 & 8. * A legal profession divided formally or informally into solicitors and barristers. See chapter 3. * A ‘common law’ system: * The system of law derived from the English legal system. Uses judicially decided cases as the basic form of law. See chapter 10. * The way that the law is made: Judges make law based on decided cases (precedents) and develop sets of legal principles which emerge from the judgments in decided cases.’ See chapter 12, 13, and 14. * The category of laws which grew from the medieval royal courts (‘the courts of common law’) and other areas of law, which came from the medieval Lord Chancellor’s role (‘equity’). See chapter 10. * Decision making in courts after an adversarial trial: derived from historical ‘trial by battle’ introduced by Normans. The battle has since then become a verbal one. See chapter 2. * A court system for dispute resolution: See chapter 11. However, Australian law has developed distinct characteristics of its own: * A federal system made up of a Commonwealth and States and Territories: separates out the powers of different bodies of government. See chapter 8. * A limited recognition of indigenous customary law: Mabo (No 2) held that native title to land could exist, separate from the common law and based on indigenous customary law. Other forms of recognition are ad hoc, but do exist: * Criminal...
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...of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the publisher Permissions may be sought directly from Elsevier’s Science & Technology Rights Department in Oxford, UK: phone (ϩ44) (0) 1865 843830; fax (ϩ44) (0) 1865 853333; e-mail: permissions@elsevier.com. Alternatively you can submit your request online by visiting the Elsevier web site at http://elsevier.com/locate/permissions, and selecting Obtaining Permission to use Elsevier material Notice No responsibility is assumed by the publisher for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products, instructions or ideas contained in the material herein. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN-13: 978 0 7506 8032 5 ISBN-10: 0 7506 8032 6 For information on all CIMA publications visit our web site at books.elsevier.com Typeset by Integra Software Services Pvt. Ltd, Pondicherry, India www.integra-india.com Printed and bound in Great Britain 06 07 08 09 10 10 9 8 7 6 5 4 Working...
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