English for Lawyers 3 Lecturer: Miljen Matijašević

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Presentation transcript:

English for Lawyers 3 Lecturer: Miljen Matijašević G10, room 6/I, Tue 11:30-12:30 e-mail: miljen.matijasevic@gmail.com Session 5, 31 Oct 2017

The Law of Torts (cont.)

The Law of Torts How can we define a tort? What can happen as a consequence of tortious conduct? Compare: trespass to land and nuisance assault and battery false imprisonment and defamation libel and slander

Negligence

Concept of negligence involves situations where a lack of care by a person who was expected to provide it causes damage to another developed in English law in 1932 by the House of Lords Donoghue v Stevens [HL 1932], a.k.a. the Paisley snail case

Concept of negligence Donoghue v Stevens (HL 1932) Lord Atkin – the ‘neighbour principle’ „You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” Who does Lord Atkin refer to as a ‘neighbour’?

Concept of negligence negligent conduct may entail legal liability and warrant the payment of damages key concepts: duty of care reasonable foreseeability of harm (reasonable foresight) standard of care breach of duty of care

Duty of care and reasonable foresight Think of situations which probably involve a duty of care!

Duty of care and reasonable foresight reasonable foreseeability of damage caused by a lack of care suggests there probably is a duty of care reasonable foresight – harm that can reasonably be expected Think of examples of such harm and harm which might not be reasonably expected in a possible duty of care situation!

Standard of care judging whether a duty of care was breached requires knowing what standard of care is expected of the defendant general standard: conduct by a reasonable man in the given circumstances Reasonable man is a legal concept. What care do you think can be expected from him? Free from over-apprehension and over- confidence

Standard of care What difficulties might arise in determining the care of a reasonable man? What about cases of professional negligence? professional negligence – professional standard a body of experts will attest to common, standard and reasonable practices in the relevant profession

Breach of the duty of care if the defendant’s acts or omissions were below the standard – breach of the duty of care is established negligence is proved

Considerations in establishing a breach of the duty of care defendant’s ability to stand the loss impact of the decision on the profession concerned future adjudication (setting precedents) the ‘floodgates’ argument

Breach of duty of care Do exercise III – true or false?

Causation after negligence is proved, the next thing to determine is actual liability for the damage the link between the breach of duty of care and the damage - CAUSATION ‘but for’ test: ‘Would the claimant have suffered damage but for the negligent act of the defendant?’ standard of proof: balance of probabilities

Causation multiple possible sources of damage possible effects non-tortious natural risk claimant’s conduct (contributory negligence) possible effects defendant found not liable reduction of the amount of damages How do you think the court makes a decision when multiple risks are involved?

Causation breaking the chain of causation intervening act (novus actus interveniens) by the claimant by a third party by a natural event Think of examples of intervening acts that interrupt the chain of causation!

Regulation of negligence developed in common law and still largely regulated by case law examples of codified negligence law: consumer protection: EU regulations impose strict liability on any person in the chain of production and distribution of harmul products (product liability laws) occupier’s liability: occupant of premises is liable for any damage sustained by visitors to the premises due to poor maintenance

Causation Do exercise VI – true or false? In pairs, take turns to explain the key terms of negligence (ex. IV & VII) DISCUSSION read and discuss the case studies (ex. IX & X)

Thank you for your attention!