Discussion on Liability ?

[Openlaw15]

I certainly wouldn't guess if the handyman is too poor sue or if I felt sorry for the landlady or if there was a fault with the shower door. There is no evidence that the shower door is new or very old. There is no evidence to show that the handyman hasn't just won the lottery. There isn't any evidence that the landlady hasn't just cut costs and had an inferior product installed or good product badly maintained. There isn't even any evidence, apart from the op's account, that the poor young girl wasn't heavy handed. In short there isn't enough evidence to guess at anything. Most modern shower doors would be made to recognised safety standards and should just shatter like a car windscreen. So the best thing is to try and find out the make and model of the shower door and its age. Did the handyman come round to make safe, give an opinion or cover his tracks. Had the screen been altered in any way or repaired and if so who by and at who's request. The landlady will probably blame the young girl for playing with it. In my opinion the best thing to do would try and find out if there is an independent assessor, maybe through the council or HSE who could look into the issue professionally without bias especially if the poor girl was injured in a serious manner. Leave all the guessing of blame to somebody in a position to judge correctly.

An ambulance and a minibus collide with a car whose driver is left seriously injured through no fault of their own. Guess who would be sued and who wouldn't? Scenario 2: a rugby player is paralysed in a rugby scrum in which several players were potentially liable. The amateur referee happened to be a qualified lawyer. Guess who would be sued and who wouldn't?

[meellis]

Re: Accident help! Shower door collapsed on daughter

I wouldn't guess I would wait for facts.

[Openlaw15]

Re: Accident help! Shower door collapsed on daughter

I wouldn't guess I would wait for facts.

predictably, bus driver's company and....lawyer

[charitynjw]

Re: Accident help! Shower door collapsed on daughter

An ambulance and a minibus collide with a car whose driver is left seriously injured through no fault of their own. Guess who would be sued and who wouldn't? Scenario 2: a rugby player is paralysed in a rugby scrum in which several players were potentially liable. The amateur referee happened to be a qualified lawyer. Guess who would be sued and who wouldn't?

predictably, bus driver's company and....lawyer

Imho

You could sue, but you would then have to identify the culpable person(s) & prove that they were 'Caldwell' negligent. (R v Caldwell 1982)
The 'reasonable person' test would be used to determine whether there was an obvious risk, & whether that person/persons
1/ didn't bother to consider whether there was a risk.
2/ knew there was a risk, but carried on regardless.

"Recklessness on the part of the doer of an act presupposes that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section that created the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting "recklessly" if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such a risk, he nevertheless goes on to do it."
R v Lawrence [1982] AC 10
Lord Diplock at 526E

Regarding the sports analogy, a fairly detailed opinion on culpability can be found here:-
http://www2.warwick.ac.uk/fac/soc/la...mes_deeley.pdf

Of course, that's only my take on it; I could be wrong (&, according to my nearest & dearest, often am! )

[meellis]

Re: Accident help! Shower door collapsed on daughter

I am not going to go off topic for the OP's sake but in the case of the road traffic accident the police would investigate and apportion blame to whoever they felt were responsible, if anybody, and prosecute if necessary before anyone would be sued. Again in the case of the rugby accident the facts of the injuries and how they happened would be ascertained before any action. If I went to a lawyer who saw a lot more into a case before any facts had been placed before them I would run a mile. The only professionals who act on made up scenarios and no facts are journalists not lawyers.

[Openlaw15]

Re: Accident help! Shower door collapsed on daughter

Imho

You could sue, but you would then have to identify the culpable person(s) & prove that they were 'Caldwell' negligent. (R v Caldwell 1982)
The 'reasonable person' test would be used to determine whether there was an obvious risk, & whether that person/persons
1/ didn't bother to consider whether there was a risk.
2/ knew there was a risk, but carried on regardless.

"Recklessness on the part of the doer of an act presupposes that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section that created the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting "recklessly" if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such a risk, he nevertheless goes on to do it."
R v Lawrence [1982] AC 10
Lord Diplock at 526E

Regarding the sports analogy, a fairly detailed opinion on culpability can be found here:-
http://www2.warwick.ac.uk/fac/soc/la...mes_deeley.pdf

Of course, that's only my take on it; I could be wrong (&, according to my nearest & dearest, often am! )

You're seemingly quoting criminal law, ie the objective test in Caldwell, and Culpable/ recklessness, ie mens rea for the crim. element of intent.

[Openlaw15]

Re: Accident help! Shower door collapsed on daughter

I am not going to go off topic for the OP's sake but in the case of the road traffic accident the police would investigate and apportion blame to whoever they felt were responsible, if anybody, and prosecute if necessary before anyone would be sued. Again in the case of the rugby accident the facts of the injuries and how they happened would be ascertained before any action. If I went to a lawyer who saw a lot more into a case before any facts had been placed before them I would run a mile. The only professionals who act on made up scenarios and no facts are journalists not lawyers.

We're not talking about criminal law, we're discussing civil torts. Where is this prosecution point coming from? No, the lawyer was worth suing because he had lots of money....the rugby players didn't have the money. It was a very controversial Court of Appeal case, I did an essay on the ruling and naturally lots of lawyers, amateur rugby referees, and sports' teachers in general, owing to the implications of the case's ratio were outraged, as per academic commentary in legal journals etc.

[Amethyst]

Re: Accident help! Shower door collapsed on daughter

I've just moved this off the showerscreen thread so you can discuss without detracting too far from the original OP's issue.

[des8]

Re: Discussion on Liability ?

As a keen follower of rugby I was aware from the outset that the description given by OPENLAW was faulty.
If he had said the referee had failed to enforce the rules of the game. and that was the reason for the scrum collapsing and causing catastrophic injuries, and that was the reason why the ref was sued.............
As Mellis suggests "ascertain the facts before proceeding"

[Openlaw15]

Re: Discussion on Liability ?

it was a little more complex than that - my point was each and every one of those rugby players owed the other a duty - it was the rugby players who decided to take it on their person to do what they did. Isn't a man responsible for his own actions?

[meellis]

Re: Discussion on Liability ?

First of all the prosecution point, any serious RTA would be investigated by the police who would ascertain the cause and if applicable prosecute anyone seen to have been in the wrong on the side of the law. This investigation would also indicate anyone who could be deemed responsible and hence open to being sued with a chance of winning. Secondly I have a few criminal lawyers as customers who haven't got much money at all so again one of your many assumptions that lawyers have money is just that, an assumption. What part of America are we in, you don't sue people because they have money you sue them because they are responsible and with the costs involved you would want to be damn sure they were responsible. As for people being outraged at the rugby case , if this outrage was directed at your essay I could totally understand it, especially if it was based on assumptions and guesses about facts not there like a lot of posts you supply here are anything to go by.

[Openlaw15]

Re: Discussion on Liability ?

First of all the prosecution point, any serious RTA would be investigated by the police who would ascertain the cause and if applicable prosecute anyone seen to have been in the wrong on the side of the law. This investigation would also indicate anyone who could be deemed responsible and hence open to being sued with a chance of winning. Secondly I have a few criminal lawyers as customers who haven't got much money at all so again one of your many assumptions that lawyers have money is just that, an assumption. What part of America are we in, you don't sue people because they have money you sue them because they are responsible and with the costs involved you would want to be damn sure they were responsible. As for people being outraged at the rugby case , if this outrage was directed at your essay I could totally understand it, especially if it was based on assumptions and guesses about facts not there like a lot of posts you supply here are anything to go by.

Ok - the point was about civil torts ...when i say i did an essay i meant in tort law....i mean by that i had to examine legal journal authors who were outraged. You can only sue someone if they're worth suing... the lawyer was worth suing as he had lots of money. I am not saying I agree with it, I am just saying he was the scapegoat. Let's not get personal. I will say it is again i studied tort law. The post was about tort law but you made criminal law points, which was just not relevant. I know about criminal law too, because I studied criminal law and also had to do essays on mens rea amongst other things. It was not about guesses it is about being practical.

[charitynjw]

Re: Accident help! Shower door collapsed on daughter

You're seemingly quoting criminal law, ie the objective test in Caldwell, and Culpable/ recklessness, ie mens rea for the crim. element of intent.

We're not talking about criminal law, we're discussing civil torts. Where is this prosecution point coming from? No, the lawyer was worth suing because he had lots of money....the rugby players didn't have the money. It was a very controversial Court of Appeal case, I did an essay on the ruling and naturally lots of lawyers, amateur rugby referees, and sports' teachers in general, owing to the implications of the case's ratio were outraged, as per academic commentary in legal journals etc.

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.

[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.

here's an except from my essay on duty of care:
"The courts employa set of rules to determine who owes a duty of care as to where and when thatduty must arise. For new cases wherethere is no existing precedent the Caparo test applies. It comprises a reasonable foresight of harm;sufficient proximity of relationship; fair, just and reasonable to impose aduty (Caparo Plc. v Dickman [1990] 2A.C. 605 (HL)).On the other hand,in Smoldenv Whitworth[1997] ELR249, [1997] PIQRit was held that a referee owes a duty only whereappropriate ‘in the circumstances: Bourhillv. Young [1943] AC 92 (HL). There would be no general dutyfor a referee up to the present case. In any event, it was held 1) reasonablyforeseeable that serious injuries could occur in a dangerous sport. However,competitive sport is prejudiced; as reasonably foreseeable injuries must notautomatically give rise to a duty for all referees(Bourhill [1942] 2 All ER 396 (at p.397)).Serious rugby injuries are very rare whereas similar motorbike injuries are not(Bourhill). The judge also held there was a close relationship between the refereeand the rugby players; he is responsible for their care (Witting, C., 2005),and he employs rugby rules which protect them. Indeed but a referee has anincidental relationship to players whereas commercial relationships are longterm (Caparo). It was also held just, fair, and reasonableto impose a duty; rugby players can be paralysed, lose careers; possible toemploy an insurance system [para. 11]. The judgement thus held a referee has a duty to his players. "

[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.

You're right though some of it does sorta' cross over, especially crim. negligence