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Tort Law Notes
https://www.uninote.co.uk/vendor/kings-llb-student/ All rights reserved to the author. Tort Law Notes Part 1 out of 2 [127 pages] Contents: Intentional Interferences with the Person + Defences Occupiers’ Liability Nuisance + The Tort in Rylands v Fletcher Remedies Vicarious Liability 1 https://www.uninote.co.uk/vendor/kings-llb-student/ All rights reserved to the author. Intentional Interferences with the Person Who can sue whom, in what tort, for what damage and are there any defences? Causes of Action Trespass to the person is an intentional tort = the conduct must be deliberate. It is the act and not the injury that has to be intentional, D does not need to intend to commit a tort or cause harm. Trespass is actionable without proof of damage. Letang v Cooper [1965] QB 232 Patch of land/grass used as car park for a hotel. Claimant sunbathing on that patch, car ran over her. Suffered severe injuries to her legs, she sued. It mattered whether she was bringing her claim in the tort of battery and in the tort of negligence because of the limitation period. This no longer applies because of new statute (private law 6 years, personal injury 3 years). Lord Denning: “We divide the causes of action now according as the defendant did the injury intentionally or unintentionally.” Intentionally = trespass to the person Unintentionally = negligence ASSAULT An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person. Assault protects the right not to be put in fear of unlawful invasion of our integrity. -
Confusion, Contradiction and Chaos Within the House of Lords Post Caparo V Dickman
Confusion, contradiction and chaos within the House of Lords post Caparo v Dickman John Hartshorne* This article seeks to demonstrate how decisions of the House of Lords upon duty of care in negligence following Caparo Industries plc v Dickman [1990] 2 AC 605 have introduced confusion into the law and created avoidable difficulties for those who must apply them. It describes the varying concepts which have been adopted by their Lordships when analysing whether to create new duties of care, and explores the extent to which these concepts are intelligible. It draws attention to the contradictory reasoning adopted by their Lordships, which has contributed to general erosion in the integrity of their judgments. It is contended that the making of just decisions and the creation of clear laws are not necessarily mutually incompatible objectives. INTRODUCTION The House of Lords, as a supreme appellate tribunal, should not merely endeavour to ensure that justice is done in the individual appeals which are argued before it, but it should also attempt to shape and develop the law in a manner which is conducive to the effective operation of the doctrine of stare decisis. Lower court judges, lawyers and teachers are obliged to apply, advise upon, and teach the law as crafted by the appellate courts. Where there is confusion, contradiction or even chaos within the jurisprudence of the appellate courts, however, injustice, unpredictability of outcome and despair will inevitably follow in its wake. On any rational level such mischief should be reduced to a minimum. Yet in the sphere of duty of care within the law of negligence, it would appear that the House of Lords has been set upon a course diametrically opposed to this ideal. -
What Mischief Does Hedley Byrne V Heller Correct?
5 The Curious Incident of the Dog that did Bark in the Night-Time: What Mischief does Hedley Byrne v Heller Correct? David Campbell* [S]uffering and evil are nature’s admonitions; they cannot be got rid of; and the impatient attempts of benevolence to banish them from the world by legislation, before benevolence has learned their object and their end, have always been productive of more evil than good.1 I. Introduction It is unarguable that the creation of tort liability for negligent misstatement by the 1963 2 House of Lords’ decision in Hedley Byrne and Co Ltd v Heller and Partners Ltd has, I *I am grateful to Allan Beever and Paul Mitchell for their comments. 1 Editorial, ‘Administration of Towns’ (13 May 1848) 246 The Economist 536. 2 Hedley Byrne and Co Ltd v Heller and Partners Ltd [1964] AC 465 (HL) (‘Hedley Byrne’). The Court of Appeal decision is reported at [1962] 1 QB 396 (CA). The transcript of the unreported High Court judgment of McNair J, handed down on 20 December 1960, is held in the House of Lords’ Library. The reference code by which it most conveniently may be found by searching the Parliamentary Archives database (Portcullis) is HL/PO/JUU/4/3/1107. The transcript can be found in the Appendix to this volume. I am grateful to Paul Mitchell and Ms Jennie Lynch of the Parliamentary Archives for help in obtaining this transcript. Due to Ms Lynch’s efforts, the entire House of Lords Library file of Hedley Byrne case papers is now open. -
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DUTY OF CARE. ARISTOTLE AND THE BRITISH RAJ: A RE-ASSESSMENT [In this article. the author analyses duty of care cases from Australia and England usingprinciples of logical the001 . After identrbing a number of errors which frequently occur in the area. it is argued that there is a correlation between the presence of these errrors and inadequate policy discussion. Finally. an approach compatible with current Australian authority is suggested and applied to the facts of a recent High Court decision.] I Theoretical Framework for Analysis ....................... .. .......................................67 A The Place of Logic in the Law .................... .................... ............................67 B Formal Logic and the Duty of Care .................. .....................................70 I1 Proximity and Incremental Reasoning from Analogy: Duty of Care's Non- Procrustean Beds .....................................................................................................72 A Proximity .....................................................................................................72 B Incremental Reasoning by Analogy ............................................................76 C Where To From Here? .................. ................. ..............................................81 111 A Suggestion for Reform .........................................................................................81 A The Nature of Policy in the Law of Negligence ...................... ............. 82 B The Suggested Approach ........................................................................ -
TORT LIABILITY for RATINGS of STRUCTURED SECURITIES UNDER ENGLISH LAW Kern Alexander*
TORT LIABILITY FOR RATINGS OF STRUCTURED SECURITIES UNDER ENGLISH LAW Kern Alexander* INTRODUCTION This article analyses whether there are legally cognisable claims for misrepresentation and negligence under English law that can be brought by a professional investor against a credit ratings agency for providing AAA ratings to structured finance instruments, such as collateralised debt obligations, when investors later discover that the ratings agency failed to act with due care in issuing the rating. English courts have generally followed the doctrine of Hedley Byrne1 and Caparo Industries2 in holding that in a negligence action for economic loss for making careless statements the defendant does not have a duty of care to a claimant with whom the defendant does not have a direct relationship (ie., privity of contract) in respect of its claim, unless the claimant can show that the defendant knew or should have known that its representations would be disseminated and relied upon by the claimant. These tort law principles are especially relevant in considering the claims of investors in complex financial instruments which were sold to them before the global credit crisis erupted in late 2007 and which were rated AAA by credit rating agencies. Indeed, these investors – many of them professional investors, including many British banks that suffered heavy losses and were later nationalized and/or subject to substantial taxpayer bailouts, such as the Royal the Bank of Scotland and Northern Rock – had purchased structured debt securities before the credit crisis began from special purpose vehicles or other legally distinct entities that were usually set up by the banks responsible for promoting and arranging the sale of the securities.