Wednesday, April 6, 2011

The Law of Tort & Mercantile.

Suggestion for midterm exam of 2nd semester
The Law of Tort & Mercantile.

1. a. Define the Tort?

Meaning of Tort:
The word Tort is derived from French word of the same spelling which means "mischief, injury, wrong, or calamity", from Latin tortus meaning twisted.

A Tort is the French word for a "wrong." A tort is a civil wrong. A civil wrong involves a breach of a duty owed to someone else, as opposed to criminal wrongdoing which involves a breach of a duty owed to society. Torts are civil wrongs other than breaches of contract and certain equitable wrongs.

Broadly speaking, a tort is a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages.

b. Distinguish between tort and crime.

A tort is widely different from a crime. A tort differs, from a crime in the following four respects:
i. As regards the consequences of the act or omission:
Tort is an infringement of the private or civil right belonging to individuals considered as individuals, where as crime is a breach of public rights and duties which affects the whole community considered as community.
ii. As regards procedure:
In torts the civil suit is instituted only by the person wronged and by none else; whereas in a crime since it is wrong to the public at large, proceedings can be instituted, with a few exception only, by any member of the public on in some cases the police takes cognizance by its own. In case of criminal proceedings, the state is deemed to be a necessary party and it is taken to be a proper party to institute the proceedings.

iii. As regards redress or remedy:
In a tort the remedy is to claim damages for the injury in a civil court and therefore they are only reparatory proceedings meant to compensate the injured party; but in crimes the proceedings are deterrent, meant to prevent its repetition by punishing the wrongdoer.

iv. As regards their history:
Both tort and crime differ in their ustorical origin. Law of crimes is later in origin than the law of torts. This point has been made clear by Sir Henry Maine in his “ Ancient Law” where he has observed that “the penal law of primitive communities was not the law of crimes but the law of wrongs or torts”.

2. a. What is strict liability?

In criminal law, strict liability is liability for which mens rea (Latin for "guilty mind") does not have to be proven in relation to one or more elements comprising the actus reus (Latin for "guilty act") although intention, recklessness or knowledge may be required in relation to other elements of the offence. The liability is said to be strict because defendants will be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea.

2.b Explain scope rule in Ryland vs Flatcher and the defenses which may be available to the dependant in an action under the rule?

Scope rule in Ryland vs Flatcher:
Rylands v Fletcher [1868] UKHL 1 is a landmark English tort law case. It applied the doctrine of strict liability for inherently dangerous activities (on appeal by Rylands, the House of Lords confirmed the previous judgment but restricted the rule to a non-natural use of the land). It established a rule related to, though arguably distinct from, the tort of nuisance, the tort of chattel 8trespass, and the tort of escape of a domesticated animal which was known in scientia to have an inclination to harm. The so-called Rylands rule has in Australia become absorbed into the ordinary law of negligence with all the requirements of duty of care, tests of reasonableness of care, foresee ability, proximity, and considerations of contributory negligence.
The dispute in Rylands concerned escape of water onto neighboring land. Later cases in which the Rylands test was applied involved the escape of all manner of wastes and materials, extending outwards to a broad range of inherently dangerous activities considered essential to modern life.

The application and interpretation of the Rylands rule has been an important step in the development of legal policy relating to modern industry, risk allocation, liability and negligence.

The defenses which may be available to the dependant in an action under the rule:
Defenses for strict liability are those that are relevant to actus reus. Defences that are probably relevant to actus reus include automatism and duress. Foresee ability has relevance too. Defenses which are relevant to mens rea have no place in cases of strict or absolute liability, since it does not have to be proved.
The defense of honest mistake as to fact (in the sense of a belief in circumstances which, if true, would make the defendant's conduct innocent), will usually succeed in an allegation of strict liability.
So, in R v Kumar [2004] a doctor had consensual sex with a boy aged 14 believing him to be over 16, they had met in an over 18’s club, he was acquitted because his belief, although mistaken was honestly held. But, in R v G [2006] CA the defendant had sex with a girl aged 12 in his room he believed her to be 15, mistake is irrelevant because she was under 13, because of the Sexual Offences Act 2003.

Vicarious liability:
A. By relation
1. Master and servant.
2. Principle and agent.
3. Employer and independent contractor.
4. Guardian and ward.

3. a. What is defamation? Discuss the essentials of defamation.

A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society (Sim v Stretch [1936] 2 All ER 1237, 1240, per Lord Atkin).

According to winfiled, “ Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society, generally, or which tends to make him shim or avoid that person.
The statement must be defamatory. According to Lord Atkin, the statement must tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem (Sim v Stretch [1936] 2 All ER 1237).
Mere abuse: Vulgar abuse is not defamatory. Mansfield CJ stated "For mere general abuse spoken no action lies" (Thorley v Kerry (1812) 4 Taunt 355 at 365, and also Pollock CB and Wilde B in Parkins v Scott (1862) 1 H&C 153 at 158, 159).
Innuendo: Sometimes a statement may not be defamatory on the face of it but contain an innuendo, which has a defamatory meaning. Such a statement may be actionable. The hidden meaning must be one that could be understood from the words themselves by people who knew the claimant (Lewis v Daily Telegraph [1964] AC 234) and must be specifically pleaded by the claimant.
The statement must refer to the claimant, ie, identify him or her, either directly or indirectly.
If a class of people is defamed, there will only be an action available to individual members of that class if they are identifiable as individuals. "If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual" (per Willes J in Eastwood v Holmes (1858) 1 F&F 347 at 349).
The statement must be published, ie communicated, to a person other than the claimant.
For example, dictating a defamatory letter to a typist is probably slander (Salmond and Heuston on the Law of Torts, 1996, p154), but when the letter is published to a third party it is libel. However, in Bryanston Finance v De Vries [1975] QB 703 it was held that where a letter was written to protect the interests of the business there was a common interest between the employer and employee, and so a letter dictated to a secretary in the normal course of business was protected by qualified privilege.

b. Distinguish between liable and slander?
The basic differences between the torts of libel and slander are as follows:
(1) Libel is a defamatory statement in permanent form, for example,
• Writing,
• wax images (Monson v Tussaud's Ltd [1894] 1 QB 671),
• films (Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581),
• radio and television broadcasts (s16 Defamation Act 1952; ss166 and 201 Broadcasting Act 1990), and
• public performances of plays (s4 Theatres Act 1968).
Slander is a defamatory statement in a transient form.
(2) Libel is actionable parse whereas damage must be proved for slander, except in four instances:
• Where there is an allegation that the claimant has committed an imprisonable offence;
• Where there is an imputation that the claimant is suffering from a contagious disease, such as venereal disease, leprosy, plague and, arguably, HIV/AIDS;
• Where there is an imputation that a woman has committed adultery or otherwise behaved in an 'unchaste' fashion (Slander of Women Act 1891); or
• Where there is an imputation that the claimant is unfit to carry on his trade, profession or calling.
(3) Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.

4. a. Define nuisance?

This word means literally annoyance; in law, it signifies, according to Blackstone, " anything that worked hurt, inconvenience or damage."
Nuisances are either public or common, or private nuisances. A public or common nuisance is such an inconvenience or troublesome offence, as annoys the whole community in general, and not merely some particular person. To constitute a Public nuisance, there must be such 'a number of persons annoyed, that the offence can no longer be considered a private nuisance: this is a fact to be judged of by the jury. It is difficult to define what degree of annoyance is necessary to constitute a nuisance. In relation to offensive trades, it seems that when such a trade renders the enjoyment of life and property uncomfortable, it is a nuisance for the neighborhood have a right to pure and fresh air.
The remedies for a public nuisance are by indicting the party.

4 b. distinguish between public and private nuisance?

A private nuisance is not an action by a private individual that another individual finds bothersome; rather, it applies to numerous events that could affect a private person. Below is an explanation of the difference between a private and public nuisance and the types of activities that fall within each category.

Private Nuisance Defined:
A private nuisance is a nuisance that affects an individual’s rights to use and enjoy his or her private property. The nuisance can be caused by another private individual, the government, a company or a group of persons. An individual’s rights include the right to quiet enjoyment of his or her land, the right to physical possession of the land and the right to transfer the land. An action, behavior, object or anything else that impedes these rights is considered a nuisance. These rights extend to individuals legally possessing but not owning the land.

Public Nuisance Defined:
A public nuisance is a nuisance that affects the public as a whole rather than a single person. Public rights are a little more extensive than private rights and include indecency, destroying the quality of the air and spreading contagious diseases. To be a public nuisance more than one person must be affected.

There are five points of distinction between public and private nuisance:

i. nature of the right violated: a public or common nuisance affects the public at large or some consideration portion thereof, whilst a private nuisance affects only person one or a determinate body of persons. In other words while a public a public nuisance is an offence against public right, safety or convenience a private nuisance is a violation of a private right of a person to the comfortable occupation of property.
ii. Who can use: public nuisance does not create a civil cause of action for any person. An action cannot be maintained by a private individual in his own name in respect of a public nuisance except under the three circumstances mentioned above. Private nuisance on the other hand is actionable at the suit of any person in possession of land who is injured by reason thereof.
iii. Acquisition of right to continue nuisance: while no length of time can legalize a public nuisance a right to create or continue private nuisance may be acquired by prescription.
iv. Abatement: while a private nuisance may be abated by the person injuriously affected thereby a public nuisance cannot be so abated by him.
v. Remedies available: An action for damages lies in respect of a private nuisance but not in respect of a public nuisance unless the plaintiff has sustained special damages. In case of a public nuisance, the action generally is for declaration and injunction.

5. Short notes:
a. Res IP Sh loquitur.

Res ipsa Loquitur:
A Latin phrase that literally means, "the thing speaks for itself". In the common law of negligence, the doctrine of res ipsa loquitur states that the elements of duty of care and breach can be sometimes inferred from the very nature of the accident, even without direct evidence of how any defendant behaved. Although modern formulations differ by jurisdiction, the common law originally stated that the accident must satisfy the following conditions:
1. ... a "duty" exists for a person to act "reasonably"; and
2. ... a "breach" of this duty occurs because a person acted outside this duty, or "unreasonably"; and
3. ... there was "causation in fact"...the result would not have occurred "but for" the "breach" of this duty; and
4. ... there were actual damages suffered by the plaintiff who did nothing wrong (i.e., no contributory negligence).
Upon a proof of res ipsa loquitur, the plaintiff need only establish the remaining two elements of negligence -- namely, that the plaintiff suffered damages, of which the accident was the legal cause.

Assault & Battery:
Assault and Battery are two different offences of common law.

An assault is - "any act by which a person intentionally or recklessly causes another person to apprehend immediate and unlawful ad personal violence."

And a battery is - "any act by which a person, intentionally or recklessly inflicts unlawful personal violence upon another person."

Difference between assault and battery:
The main difference between the two in that physical contact is an ingredient of battery, whereas mere fear of physical violence is enough to constitute assault.

Battery would include assault; out assault does not necessary involve battery. Assault is sometimes described as “inchoate battery”
Defenses :
The following eight defiance are available for battery as well as for assault:
i. Self defense: assaulting another to defend oneself (or one’s spouse children etc) is permissible. In such cases, the defiance of son assault demesne is always available.
ii. Defense of one’s property: likewise, if the plaintiff had entered the defendant’s house with force or violence the defendant would be justified in assaulting the plaintiff to defend his own property.
iii. To prevent a forcible entry or seizure: the rightful owner can always use force to re-possess himself of his land or goods or to prevent forcible entry into his premises.
iv. Exercise of parental or quasi parental authority: reasonable force may be used for the chastisement or correction of a child, pupil or apprentice.
v. Leave and licence: when a man has exposed himself voluntarily to some ham he cannot complain of assault.
vi. Preservation of public peace: a person who disturbs a public meeting or a public worship may be removed physically using reasonable force.
vii. Legal process: an assault may be justified on the ground that it was committed in serving any legal process as for instance a search warrant.
viii. Misadventure: inevitable accident is a good defence against a charge of assault or battery in cases where the act is lawful in itself and is done in a reasonable manner.

Volenti non fit injuria (Latin:
"to a willing person, no injury is done" or "no injury is done to a person who consents") is a common law doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they cannot then sue if harm actually results. Volenti only applies to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to (for example) his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk."
Volenti is sometimes described as the plaintiff "consenting to run a risk." In this context, volenti can be distinguished from legal consent in that the latter can prevent some torts arising in the first place (for example, consent to a medical procedure prevents the procedure from being a trespass to the person, or consenting to a person visiting your land prevents them from being a trespasser).

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