Discussion on Liability ?

[Openlaw15]

Re: Accident help! Shower door collapsed on daughter

My bad, I assumed criminal negligence.
However, there is a read-across (of sorts) to civil action.
The starting point, I guess, would be Donaghue v Stevenson duty of care, then breach of duty (objective & subjective) ,causation, harm & damages.

Now here's an extract from crim. law essay on intent:

"The statement suggests that intent means a guilty mind. There are several types ofguilty mind including direct intent. Generally, the mens rea of directintention is normally defined as a defendant taking a particular course ofaction bringing about a particular consequence (James LJ): R v Mohan [1976] QB at 8.The courts now also possess alternative ways to convict, for example, via oblique intent. It would be oblique intent if the accuseddoes not intend to kill a person but his taken actions were virtually certainthat it occurs anyway: R v Woollin [1999]1 AC 82 (HL). In this oblique case the prosecution did not prove intention butit still led to a conviction, conflicting with the statement. The definition ofintent is at odds with it too as the defendant had not intended any particularharm. It is suggested that this ratio relates to a softer test for amanslaughter defence. The redeeming feature is morality, ie affection: the babyhad never been harmed before. It seemslack of morality in murder cases would have stricter tests, also negates any manslaughterdefences: Norrie, W. (1999) at 542/3. The statement suggests that reckless law pertains to blameworthiness. Reckless applied to property damage was defined as the defendant knows of an obvious risk, its consequence, but goes ahead anyway: Police Commissioner v. Caldwell [1982] AC 341 (HL). " Recklesscases comprised various culpability levels so the courts used subjective andobjective tests. The subjective approach was whether a defendant would foreseehis actions leading to destroying a property next door: Character is relevant,ie drug addict: R v Cunningham [1957]2 QB 396 (CA). The objective test was whether the reasonable person in his positionforesees said risk. Character is not relevant as it is restricted to samegender and age. The courts applied the latter test when he deliberately startsa hotel fire, endangering human lives:Caldwell. Theremay be many degrees of culpability however, ie some passive, aggressive, orquite dangerous: Husak, D. (2012) at 456. Said hypothetical person will likely relatemore to the lofty Eton/ Oxbridge cultured judiciary than any average Joe. Asfor character, defendants may be potentially affected by mental healthproblems, or have learning difficulties.

[charitynjw]

Re: Discussion on Liability ?

I suppose the main difference is the standard of proof - beyond reasonable doubt (criminal), balance of probabilities (civil - though this can be a bit of a 'movable feast')

[Openlaw15]

Re: Discussion on Liability ?

I suppose the main difference is the standard of proof - beyond reasonable doubt (criminal), balance of probabilities (civil - though this can be a bit of a 'movable feast')

Well this is what the prosecution needs to prove, criminal liability. It depends on the offence as some crimes are strict liability, ie mens rea (guilty mind) is not necessary. Intent I suppose is diametrically similar to breach of civ duty...as like breach, criminal law for intent requires some culpability, whereas in the civil context for breach there must be some type of wrong (ie not reasonable)..so it is kinda a guilty mind. It gets confusing as there is overlap. I suppose this why some of you guys were looking at it from a crim. context. Crim law and tort law...they're rather complex for anyone ...I studied them and they're both difficult subjects.

[meellis]

Re: Discussion on Liability ?

Openlaw if we will have to agree to disagree because it is obvious you don't or will not see my points. Because of the question you originally asked you received the answer I gave. Your first scenario was where an ambulance and a minibus collided with a car where the driver was left seriously injured, you asked who would be sued. Well from your original scenario there wasn't anything to actually indicate if anybody was at all liable. It could have been ice or oil on the road which might make the highway authority or local authority liable or any other manor of incident. Being an RTA the police would have been duty bound to investigate, as to I would imagine the ambulance service. Both of these would have investigated and in the case of the police if there was any hint of criminal wrong doing they would prosecute the perpetrator. That is where the criminality could come into it and if the charges were brought about because the perpetrator was liable for the accident then that person would be the one you would sue. You stated it should be the bus driver yet if the accident was due to poor highways maintenance or icy conditions they could have been as much a victim as the innocent car driver. In the scenario concerning the rugby injury you stated the Lawyer and in a further post you say the lawyer because he had lots of money (he was made the scapegoat you went on to say). Well in the scenario as originally asked there wasn't anything to suggest liability except with maybe the players. You don't sue people because they are wealthy, even though it is a nice thought, you judge who is liable, then if they can afford it, then sue them.

[charitynjw]

Re: Discussion on Liability ?

Each case would necessarily be judged on it's own merits, given the evidence available, & by the standard of proof required for the case.
It would be the job of a judge/judges, or jury (as applicable), to decide the outcome

[Openlaw15]

Re: Discussion on Liability ?

Openlaw if we will have to agree to disagree because it is obvious you don't or will not see my points. Because of the question you originally asked you received the answer I gave. Your first scenario was where an ambulance and a minibus collided with a car where the driver was left seriously injured, you asked who would be sued. Well from your original scenario there wasn't anything to actually indicate if anybody was at all liable. It could have been ice or oil on the road which might make the highway authority or local authority liable or any other manor of incident. Being an RTA the police would have been duty bound to investigate, as to I would imagine the ambulance service. Both of these would have investigated and in the case of the police if there was any hint of criminal wrong doing they would prosecute the perpetrator. That is where the criminality could come into it and if the charges were brought about because the perpetrator was liable for the accident then that person would be the one you would sue. You stated it should be the bus driver yet if the accident was due to poor highways maintenance or icy conditions they could have been as much a victim as the innocent car driver. In the scenario concerning the rugby injury you stated the Lawyer and in a further post you say the lawyer because he had lots of money (he was made the scapegoat you went on to say). Well in the scenario as originally asked there wasn't anything to suggest liability except with maybe the players. You don't sue people because they are wealthy, even though it is a nice thought, you judge who is liable, then if they can afford it, then sue them.

I omitted facts to generate a wider discussion. The problem questions we got whilst doing law omitted things - we would have the main issues ie, vehicle collision, let's assume there were the said ambulance and a mini bus and both were in some way responsible, who could a claim be raised against? The road conditions have been omitted, so this would generate your view for instance, oily road. However, it is tort problem and should be confined to this sort of problem question. Remember also we were very restricted in a word count, of a potential 3500 word assignment, some of it could be in essay form and some in problem question form, and some in alternative outcome form. The assignment on the rugby situation facts was part research essay for the analysis of the court of appeal's case based on duty, breach, causation (ie negligence), and in respect to the type of damages available part problem assignment.

[Openlaw15]

Re: Discussion on Liability ?

Each case would necessarily be judged on it's own merits, given the evidence available, & by the standard of proof required for the case.
It would be the job of a judge/judges, or jury (as applicable), to decide the outcome

So we have discussed tort duty. Next we examined duty of care standards before going on to discuss breach, as below assignment's extracts.

"The care standardwas considered in Vowles; this relates to what is expected of the reasonable personwith his responsibilities. With inexperienceor skill, usually he only has to demonstrate competence (Nettleship v Weston [1971] 2 QB691). A routine skill (piercings etc) pertains to a lowerstandard not a surgeon’s special skill(Philips v Whiteley (William) Ltd[1938] 1 All ER 566. Thelatter pertains to the professional standard (Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118).

The judge herein in this case also said his rugby qualifications and player experience were sufficient for ‘his’basic competence. Bolam was alsoconsidered inter alia because high tier refereeing is not a routine skill (Philips) but may comprise specialskills. Not every referee has 2^nd division rugby qualifications, orconversant with rugby law, neither is there a higher professional save premiership equivalent [paras. 27-28]. Although it is a cogent rationale, it would appear the aforesaid test was not applied here.

Some persons may argue this care standard adversely affects dangerous sports.Indeed amateur or voluntary referees may be put off the game (Bellamy).However, the standard here does not apply to amateur or voluntary referees[para. 27]. Nevertheless, the voluntaryreferee and inexperienced player should also receive Weston treatment. On balance, paralysis is a scaryscenario, perhaps justified ‘only’ in the present case."

[wales01man]

Re: Discussion on Liability ?

To win anything in court there has to be proof beyond saying someone is liable because they were there .
If we take it that the person on the rugby field with the most money is liable we negate the need to prove anything.
We can quote a million laws and rulings but in reality a judge would make a decision on other things which he can obtain from witness statements and those before him .

[Openlaw15]

Re: Discussion on Liability ?

To win anything in court there has to be proof beyond saying someone is liable because they were there .
If we take it that the person on the rugby field with the most money is liable we negate the need to prove anything.
We can quote a million laws and rulings but in reality a judge would make a decision on other things which he can obtain from witness statements and those before him .

My point is though why go after the referee when the claimant could equally have gone after the other players, as rugby is a rapidly played sport it is difficult to not make mistakes in real time action. Was the judge influenced by a barrister who wanted to sue the well off lawyer? So is it really about proving liability or making a skeleton argument and persuading a judge who in all reality is likely so out of touch with normal people's views.

[Openlaw15]

Re: Discussion on Liability ?

Each case would necessarily be judged on it's own merits, given the evidence available, & by the standard of proof required for the case.
It would be the job of a judge/judges, or jury (as applicable), to decide the outcome

So after determining there's a duty, and the relevant standards of duty of care, the stage is the discussion for 'breach.' The reason there are duty of care standards is that if the amateur referee were held to a professional standard....he's easily be in breach...as much more would then be expected from him.. so the standard must not be too high where they would be in breach or too low where they never would be.

Discussion of breach of duty: rugby referee

"A breach of duty – via act or omission was considered in Vowles. This breach pertains to thereferee performing below the aforesaid standards of an hypotheticalequivalent. In general, there is noliability for omission: Stovin v.Wise [1996] AC 923. For a breach to be likely, it must be reasonably foreseeable a risk ofserious harm exists or it will eventuate: Paris v Stepney Borough Council [1951]AC 367. Competitivesportsmen legitimately attempting to win is not breach: Wilks v. CheltenhamCycle Club [1971] 1 WLR 668, except reckless and dangerous play: Condon v.Basi [1985] 1 WLR 866. Normal risks takenfor the circumstances may not result in breach: Watt v Hertfordshire County Council [1954]1 WLR 835. Even abnormal risks may be tolerated if circumstances warrant it: Dabornv Bath Tramways Motor Co Ltd & Trevor Smithey [1946]2 All ER 333. Knowledgeof risk must be proportionate with precautions taken: Tomlinson vCongleton Borough Council [2004]1 AC 4; constructive knowledge may be warranted: Roe v Minister of Health [1954] 2 QB 66 (CA)."

[NWHC]

Re: Discussion on Liability ?

I find it odd that you are quoting essays that you did presumably as an undergraduate ; these have little or no authority as they are just undergraduate essays . Hell we don't even know what grade was achieved and what year they were written in ( A final year student would expect to have to attain a higher standard that a first year one)

Essays are routinely published on the internet , this does not mean they have any authority or have been published in an academic sense as they are not peer reviewed. If you wish to make serious arguments it would be better to quote published papers or actually case law with commentary .

[Openlaw15]

Re: Discussion on Liability ?

I find it odd that you are quoting essays that you did presumably as an undergraduate ; these have little or no authority as they are just undergraduate essays . Hell we don't even know what grade was achieved and what year they were written in ( A final year student would expect to have to attain a higher standard that a first year one)

Essays are routinely published on the internet , this does not mean they have any authority or have been published in an academic sense as they are not peer reviewed. If you wish to make serious arguments it would be better to quote published papers or actually case law with commentary .

Well you see these are called cases...they're called legal authorities.. not journals, not published papers.. as these are not primary authority in law. Science pertains to peer review ..not law.. hmm. For that matter...does it matter what year they're from whether 1st or 3rd year law degree assignments as long as the authority is quoted? My view is argue points and not concentrate on the trivial non sequitur...or ad hominem...really does no person any favours. This is Legalbeagles not science beagles.

[charitynjw]

Re: Discussion on Liability ?

In relation to the instant 'case', with reference to 'spontaneous explosion of the glass, in your opinion, would the 'Man on the Clapham Omnibus' reasonably forsee that occurrence?

(Couldn't resist bringing Reginald Toff into this - particularly pertinent, considering the 'postscript', lol!)


http://graysdictionary.blogspot.co.uk/2007/02/man-on-clapham-omnibus.html
14 FEBRUARY, 2007

The Man on the Clapham Omnibus



The Man on the Clapham Omnibus, to a lawyer, is synonymous with the pinnacle of reason in humanity: an ordinary London transit rider as representative of all rational thought and action. To members of the court at the time of this term's conception, the appellation is nothing more than an inside joke, one that has persisted to become a wondrous curio of the legal realm, like a "speedy trial" or "personal responsibility."

That is to say, the Man on the Clapham Omnibus was not the Reasonable Man at all: he simply resembled him, possessing the same generally handsome features - the curlicued mustache and well-fitting bowler hat - that the Reasonable Man was oft seen wearing. The Man on the Clapham Omnibus, in truth, was Reginald Toff, nothing more than a modest tallow chandler of Northcote Road. In fact, for a man who founded his candle-making business just days after the advent of electricity, (scented though they might have been) one might go so far as to declare him an "unreasonable" man.

The story goes like this: in June of 1753, the real Reasonable Man was due in Chancery courts to give expert testimony in the matter of R. v. Murphy. He failed to show up at court at the appointed time of 9 a.m., but barristers on both sides of the matter gave the witness the benefit of the doubt, conceding 10 a.m. to be a more reasonable starting time anyhow.

When the Reasonable Man still failed to show up, earnest law clerks were sent into Chancery Lane to try and catch a glimpse of the latecomer. Just at this moment the Clapham omnibus went chugging by, spiriting Mr. Toff within. It was the young clerk Philip Dunwell, in a typical attempt to win the favour of his superior judge, that yelled, "That's our man, the man on the Clapham omnibus!"

Judges, however, were right to question the likelihood of espying the Reasonable Man within the Clapham bus, as certainly any reasonable Londoner would have taken the Battersea Omnibus to court, generally regarded to be the more expedient of the two modes of public transportation.

Indeed, our Man had taken that route, but when the bell rang to signify his upcoming stop, it proved to be a death knell for his final stop. At the corner of Wakehurst and Northcote Road, the bus crashed, killing its occupants.

While tragic, the accident proved to be one of the more succinct cases London Peelers presided over: it was determined the driver of the omnibus acted within reason, just as the driver of the post-chaise had. It was, at the risk of literary hyperbole, a pure accident. William Hogarth would later reproduce this entirely unique occurrence in one of his trademark woodcuttings, depicting the accident taking place under both an eclipse and the end of a rainbow.

To make matters worse, the justice in the Murphy case had to declare a mistrial, concluding: "Everything that could go wrong, has." (The emphasis is his, not mine.)

(Emphasis mine - c)

[NWHC]

Re: Discussion on Liability ?

What I am saying is that for all we know these essays may have been thrown back at you as rubbish because they were badly argued or case law was missed . As I also said, many papers scientific and otherwise are published on the internet , hell I can even find papers that say the Holocaust is a Jewish conspiracy ( appropriate because of the recent date) that are not scientific .

A final year student would be expected to produce a better piece of work that a 1st year

My point being is that you are trying to pass yourself off as an authority when in fact it is clear that you are not

[Openlaw15]

Re: Discussion on Liability ?

What I am saying is that for all we know these essays may have been thrown back at you as rubbish because they were badly argued or case law was missed . As I also said, many papers scientific and otherwise are published on the internet , hell I can even find papers that say the Holocaust is a Jewish conspiracy ( appropriate because of the recent date) that are not scientific .

A final year student would be expected to produce a better piece of work that a 1st year

My point being is that you are trying to pass yourself off as an authority when in fact it is clear that you are not

Ok, this assignment in question was at third year level but bear in mind as the level increases so do the demands. Every level 6 (national equivalent) law assignment has many aspects to it, ie part essay, part problem question, part alternative outcome. Law is one of the most demanding subjects. It is not a soft subject by any means. It's not about arguing law, it's making an argument from the law to match the facts; as the skill is about sticking to the question's facts like glue whilst writing the essay element, the problem solving element, the analysis of the court of appeal case, notwithstanding explaining all the criteria of negligence along the way. That is just one Part 1, as Part 2 is dealing with other scenarios including quantum damages, psych injuries, witness tests, post death claims and a reverse of the facts for an alternative outcome. Lots of lawyers avoid the law degree and do conversion courses instead...as it's not easy to pass a law assignment or the demanding law exams as it would be for less academically rigorous subjects.

NB: it's so irksome that things are made so personal - the idea of a lawyer is to think objectively.