English Tort Law Imposing Liability Law Essay

English Tort Law Imposing Liability Law Essay This essay will address the question by exploring cases dealing with occupiers liability, vicarious liability and psychiatric harm. I intend to focus on narrow aspects within these three areas of law allowing a deep critical analysis. Occupiers liability, in my opinion, is an area of law that imposes too much liability in cases involving trespassers. I dont doubt that there must be liability for the homeowner who invites someone onto their land and fails to provide a safe environment which is seen in statute such as the Occupiers Liability Act 1957, duty to take such care as in all the circumstancesto see that the visitor will be reasonably safe in using the premises.  [1]  However, tort law insists that an occupier can be held liable for personal injury suffered by trespassers because of the state of the land and this is where I believe the Occupiers Liability Act 1984  [2]  takes the principle of the 1957 Act and stretches it too far. My first critique of this aspect of to rt law is the conflict it has with criminal law. It seems incoherent that in a criminal court a home owner whose land has been trespassed on, perhaps by a burglar, will be considered the victim and duly have the sympathy of the court and yet be cast in the role of villain in a civil court. Leon Green describes how an occupier will, insist[ing] upon the intruders own wrong andinvoke[ing] his own immunity from any duty to exercise active care in behalf of a trespasser.  [3]  He then goes on to say, Assuming the intruder to be a wrongdoer, the landowners position would seem unassailable.  [4]  This journal dates back to 1917 before statute had imposed occupiers liability but the sentiment holds true. Why should the victim be held accountable for the criminals injuries in cases where there has been no active action on the part of the occupier? The negligent state of the land and arising liability should, in my opinion, be limited to lawful visitors and trespassing children, who cannot be held to the same standard as adults, if only for policy reasons. A clear message needs to be sent to unlawful visitors; crime does not pay. Why recompense them in any way from an illegal venture? Not only does it not dissuade criminal behaviour it is also wholly unfair to impose this liability on a home owner. Additionally, I would argue that when comparing occupiers liability to other areas of tort law, such as pure economic loss, it becomes clear that comparatively occupiers liability allows too much liability. The case of Weller Co.  [5]  established that a person cannot claim for pure financial loss if that loss is unaccompanied by physical damage. It seems reprehensible that innocent victims of negligence cannot claim damages from those whose, shoulders are broad enough to bear the loss,  [6]  and yet homeowners can be held liable for the injuries of trespassers. Tort law insists that innocent victims of pure economic loss must accept the financial loss as bad luck. Why is this principle not extended to trespassers? Those who trespass on land with the intent to commit a crime cannot claim to be innocent of the misfortune that may befall them. This awareness combined with the illegality of the act is enough in my opinion to put any injury that befalls a trespasser down to bad luck with, in my opinion, no liability to the homeowner. If tort law will not help the innocent it seems foolish that it is so willing to help the guilty and this yet another reason why I believe tort law imposes too much liability. Furthermore, I believe there is too much tortuous liability for occupiers in this area of the law and this can be seen in the conflict with the absolutist nature of property law. This view is seen in Semaynes case: The house of everyone is to him as his castle and fortress.  [7]  This principle has always come with certain restriction as English property law has never recognised total dominion over land. The 1957 and 1984 Occupiers liability acts impose a safe standard of maintenance of property. However, I put forth the argument that a landowner who has paid for the privilege of a property right should not be compelled by the law to prevent trespassers being injured. Property law does not enforce positive covenants as they are considered an erroneous duty, why then, should the occupier, who is doing nothing, bestir himself to look out for the safety of those who come upon his premises? Why should they not look out for themselves, as they would do anywhere else, except as to negl igence of those pursuing an active course of conduct.  [8]  I believe this burden should be alleviated and that occupiers should be allowed to spend their money, not on lawsuits, but on their property. Surely that is the prima facie benefit of owning land? Insisting that occupiers are liable for trespassers does not sit well with the absolutist history of English property law as it presupposes that money be spent in a certain way to prevent injury. I do not believe tort law should add further restrictions to property that is already subject to the laws of planning permission, restrictive covenants, nuisance etc. I believe tort law imposes too much liability and needs to strike a better balance with occupiers property rights. Another area of tort law where there is too much liability, in my opinion, is vicarious liability for employers. I am not challenging the belief that employers should be liable for their employers, to an extent, however I do believe greater limitations need to be put in place as employer liability is far too expansive. The law currently insists that employers are liable for any tortuous act committed by their employees as long as the act is within the scope of employment. Even in cases where the employer has done his utmost to prevent any negligent behaviour from his employee the law still holds him accountable such as in the case of Whatman v. Pearson.  [9]  Vicarious liability is an important aspect of tort law, as employer insurance means the claimant has a higher chance of being paid damages. However I struggle to accept an area of the law that so transparently undermines the crucial principle of causation. The law has had trouble establishing what employers should be liable for and I believe to make liability just and fair, vicarious liability should only apply in cases where the employer had some measure of control over the actions of the employee for example, authorising the act. Acts that involve the work environment but are actually entirely removed from the employers scope of awareness, for example the fraudulent dealings of the defendants in Lloyd v. Grace, Smith Co.  [10]  , would therefore fall outside the employers scope of liability. This would allow for fairness for the employer, something which I believe has been disregarded in the development of vicarious liability, because as it is the law imposes too much liability in this area. Moreover, I believe that tort law imposes too much liability in placing the burden of liability on the employer as this reduces the employees accountability for his actions. The practice of indemnity is in place but prima facie, vicarious liability effectively negates an employees legal culpability as despite sharing liability damages are most likely to come from the employers insurance. Legal theory has taught us that laws play their part in shaping social dynamics and surely what is needed to improve society are laws that ensure people are held responsible for their actions. The practice of vicarious liability, though coherent regarding policy reasons does not deal with the human reality of being legally and socially culpable for ones actions. It seems to me that vicarious liability is yet another area of the law that supports the notion of passing the buck and the way to reduce acts of negligence is to hold the actual tortfeasors, the employees, financially responsible. Take the J apanese model of employer liability as described by Joseph Sanders and Lee Hamilton, Japanese law stresses individual responsibility for corporate crime and rarely holds the organization responsible.  [11]  As long as employees are aware that any tort of negligence they commit during the course of employment will be recoverable from the employer they will never be inclined to be diligent to the best of their ability. It is for this reason I believe that tort law imposes too much liability on employers. I believe the area of psychiatric injury is one area of tort law where there is far too little liability. For a claim regarding psychiatric injury to be actionable the claimant must have either been a primary victim who was a foreseeable victim of psychiatric or physical injury or a secondary victim who meets various criteria. These criteria are laid down in Alcock v. Chief Constable of South Yorkshire  [12]  and are that there is a loving bond with the claimaint and the primary victim, proximity to the accident and that the psychiatric injury occurred as a result of seeing or hearing the accident with eyes and ears. Secondary victims have to jump through hoops to prove they deserve recompense for a psychiatric injury and this seems to suggest that the judicial system does not hold psychiatric injury in the same regard as physical injury. The law commission states, although psychiatric illness is often more debilitating than physical injury, the message conveyed by the prevailing rules is that mental and emotional wellbeing are of less account than physical integrity.  [13]  Perhaps the recalcitrance of the tort system to consider psychiatric injury as equal to physical injury, and therefore increase liability, is because of the residual stigma associated with psychiatric injury as well as the fear of floodgate liability. Whatever the reason, a system that differentiates between the two forms of injury is in my opinion a flawed system as both are forms of injury that should be dealt with uniformly. Lord Lloyd remarks that, there is no justification for regarding physical and psychiatric injury as different kinds of injury,  [14]  and yet the liability for both forms of injury is still imbalanced. Furthermore, why should different rules apply to primary and secondary victims? Should forseeability, causation, establishment of harm etc not be the core principles in establishing liability? As H. Teff states, in distinguishing between primary and secondary victims tort law, allows artificial criteria to displace the more natural question: should the defendant be liable to the plaintiff in all the circumstances?  [15]  I believe tort law offers too little liability by erecting false barriers that prevent victims from attaining damages. Cases such as Alcock  [16]  and White and Others v. Chief Constable of South Yorkshire  [17]  are evidence of the unfair system at work. Both cases involve innocent victims who were denied damages as liability was not imposed because crude, superficial criteria were not meant. As long as the harm to the victim was caused by the defendant and the damage to the victim was foreseeable then I do not believe there should be any differentiation between primary and secondary victims. The flaws of tort laws attempt to make a distinction between between primary and secondary victims is summed up by H. Teff who states, Instead of discriminating against foreseeable secondary victims, the law should reflect the fact that, often, the altruistic source of their reactions makes them at least as deserving as many primary victim Until the current legal system looks to a new and fairer model of liability regarding psychiatric injury the liability imposed will never be enough. Another fault with the tort system in how it deals with psychiatric injury is that the limits imposed for liability are too restrictive and the reasons behind the restrictions not particularly persuasive. The law refuses to relax the criteria for liability with no real explanation as to why bar a fear that laxer criteria will open up the floodgates of litigation. However H. Teff, referencing B.F. Hoffman  [18]  and the Law Commission, Consultation Paper  [19]  , explains why he does not think this is a real cause for concern, The enduring, if diminished, stigma associated with psychiatric illness inhibits many would-be claimants, and the risk of exposure through increasingly refined techniques of psychological assessment has reduced the risk of undeserving claimants succeeding on the strength of loose medical definition.  [20]  So if one accepts that the floodgate argument, for imposing such rigid criteria before there can be criteria, is unsound then one must also accept that the current law imposes too little liability as a result. Furthermore, many of the criteria regarding psychiatric injury are archaic and arbitrary. For example, Mullany noted that, The psychiatric literature does not allow the assertion that the impact of trauma is inevitably more severe if directly perceived  [21]  and yet tort law has stubbornly held onto the criteria that the event causing injury must be perceived with the senses, refusing to allow development and change in line with new understandings of psychiatric illness. Cane argues, how can we justify a rule which requires mentally traumatized people to go to court and prove that they have strong feelings of love and affection towards another?  [22]  The old attitudes to psychiatric harm are no longer justifiable and so a criterion that is insensitive to the needs of those suffering injury must be criticized and adjusted. The criterion that the event causing psychiatric harm must be sudden  [23]  again seems arbitrary, a rule designed for no other purpose but too limit liability. Harvey Teff argues, The laws current stance effectively penalises those whose illness involves a more prolonged reaction to an event or events closely connected with the defendants negligent conduct.  [24]  These are but a few of the criteria imposed before there can be liability and I believe they serve to show that as Harvey Teff states, the current rules are, At odds with psychological reality, amount(ing) to no more than unprincipled line-drawing.  [25]   I have attempted to give both sides of the question equal attention and in doing so this has led to me to the conclusion that one cannot say tort law as a whole imposes too much or too little liability. I believe that psychiatric injury is too restricted in its liability and vicarious and occupiers liability are too expansive. In these areas I believe reform would be welcome however one must recognise that no legal system is perfect and the tort system could be far worse.

Pet Peeve

Food! Oh my god I love food, and you can kind of tell. There so many different kinds. I enjoy the great satisfaction when I’m full. The only thing I don’t really like about food is seeing it in people’s mouths or hearing them chewing on their food. This is probably one of the things that irks me the most. If you want to make me leave a room, I have just clued you into a very simple way it can be done. Once I was at the theaters with my sister and two brothers going to see the movie Battle of Los Angeles. My sister asks if I can go get her some snacks and me being the kind person that I am I had no problems with that. I came back with couple of snacks some M&Ms, Reece’s Pieces, and chocolate covered raisins, my favorite. About halfway into the movie my sister grabs a handful of Reece’s Pieces, shoves it in her mouth and starts munching. CRUNCH! CRUNCH! CRUNCH! While her mouth was still full she makes a comment on the movie and SPLAT! Landed right on my face. She saw what she had done, not a big deal she apologized and I forgave her. Next, me and my mother went to a restaurant to eat breakfast. Everything was going all good. We were talking about her work, but once again someone had to talk while their mouth was full! She cuts a small piece of her pancake with her fork puts it in her mouth starts talking. I then look at her with a disgust look in my face and right when she said, â€Å"WHAT?! †I felt a piece of her food landed on my mouth. GROSS! I literally lost my appetite and didn’t really want to eat no more. I didn’t really say anything because if I did I knew she would of overreacted and got mad so I kept my mouth shut this time. Once more! When I thought that this wouldn’t happen to me again†¦ well at least not until awhile, but it did! About a couple days from my last incident it happened again, but this time it was worse. I didn’t even know the person. I was minding my own business talking to my friends then I hear this disgusting sound kind of sounded like a deer gnawing off its own leg? I turned around to see some guy eating an apple chewing with his mouth open. I really tried minding my own business really trying not to be the bad guy and say something, but then I felt something kind of wet, hit the back of my neck and couldn’t help but tell him. Of course I wasn’t rude about it I just told him if he can chew with his mouth close because it’s disgusting and a piece of it flew out of his mouth and landed on the back of my neck. Obviously he didn’t care or was too embarrass because he didn’t even speak. Couldn’t even say sorry at least. Some people are just rude these days. They should really start using their manners and close their mouth and keep it shut when they are eating. Its disgusting and nobody wants to see that! If they wanted to know what they are eating they would of asked! After all this had happen to me I really am annoyed with people who talk with their mouth full, chews with their mouth open, or chews really loud.

Muslim Article

The New York Times article â€Å"Congressman Criticizes Election of Muslim† (Swarns 2006) reported on the criticism made by Virginia's Republican Congressman Virgil H. Goode Jr. on the recent election of Minnesota Representative Keith Ellison. According to Rep. Goode Jr., the election of Keith, a Democrat and the first-ever Muslim to sit in the United States Congress, is a grave threat to traditional American values. Goode's warning, contained in a letter addressed to his Virginia constituents dated Dec. 5, 2006, asked Americans to â€Å"wake up† or face the likelihood of more Muslim elected officials that would demand â€Å"use of the Koran†.He also called for the adoption of stringent immigration policies as a step towards the preservation both of this country's beliefs and values and resources. Ellison, a former criminal lawyer and a convert to Islam, has planned to use the Muslim bible in January during his private swearing-in. Goode's comments elicited criti cisms of bigotry and intolerance from some Democrats in Congress and from Muslim Americans as they pointed out that the official swearing in of officials, in contrast to private swearing in,   do not use religious texts. For his part, Ellison pointed out that he is no immigrant, saying that he's an African-American whose roots goes â€Å"back to 1742†. He also said he is a politician and not a religious scholar such that Goode has â€Å"nothing to fear†.This article of the New York Times gave a rather fair coverage as it observed the journalistic standard of presenting both sides of an issue. The article gave space to both Goode's and Ellison's statements and counter-statements, attempting to do so from an objective viewpoint. As for the issue of Islam or being Muslim depicted by the story itself, there are obviously two conflicting sides, two opposing viewpoints. The side of Rep. Goode adopts the position that Islam in the country, or at least the practices of Islam (as the use of Koran, instead of the Christian Bible in swearing-in), poses a considerable threat to traditional American culture. He even insinuated that Muslims, along with other immigrants, are a burden to the United States. On the other, the coverage of Ellison and his sympathizers show that Muslim Americans, who could be good citizens, are welcome in this country. U.S. Congressman Criticizes Election of Muslim By RACHEL L. SWARNSPublished: December 21, 2006WASHINGTON, Dec. 20 — In a letter sent to hundreds of voters this month, Representative Virgil H. Goode Jr., Republican of Virginia, warned that the recent election of the first Muslim to Congress posed a serious threat to the nation’s traditional values.Skip to next paragraphRepresentative Virgil H. Goode Jr., left, said Keith Ellison’s decision to use a Koran in a private swearing in for the House of Representatives was a mistake.Mr. Goode was referring to Keith Ellison, the Minnesota Democrat and criminal defense lawyer who converted to Islam as a college student and was elected to the House in November. Mr. Ellison’s plan to use the Koran during his private swearing-in ceremony in January had outraged some Virginia voters, prompting Mr. Goode to issue a written response to them, a spokesman for Mr. Goode said.In his letter, which was dated Dec. 5, Mr. Goode sa id that Americans needed to â€Å"wake up† or else there would â€Å"likely be many more Muslims elected to office and demanding the use of the Koran.†Ã¢â‚¬Å"I fear that in the next century we will have many more Muslims in the United States if we do not adopt the strict immigration policies that I believe are necessary to preserve the values and beliefs traditional to the United States of America and to prevent our resources from being swamped,† said Mr. Goode, who vowed to use the Bible when taking his own oath of office.Mr. Goode declined Wednesday to comment on his letter, which quickly stirred a furor among some Congressional Democrats and Muslim Americans, who accused him of bigotry and intolerance.They noted that the Constitution specifically bars any religious screening of members of Congress and that the actual swearing in of those lawmakers occurs without any religious texts. The use of the Bible or Koran occurs only in private ceremonial events that ta ke place after lawmakers have officially sworn to uphold the Constitution.Mr. Ellison dismissed Mr. Goode’s comments, saying they seemed ill informed about his personal origins as well as about Constitutional protections of religious freedom. â€Å"I’m not an immigrant,† added Mr. Ellison, who traces his American ancestors back to 1742. â€Å"I’m an African-American.†Since the November election, Mr. Ellison said, he has received hostile phone calls and e-mail messages along with some death threats. But in an interview on Wednesday, he emphasized that members of Congress and ordinary citizens had been overwhelmingly supportive and said he was focusing on setting up his Congressional office, getting phone lines hooked up and staff members hired, not on negative comments.â€Å"I’m not a religious scholar, I’m a politician, and I do what politicians do, which is hopefully pass legislation to help the nation,† said Mr. Ellison, who said he planned to focus on secular issues like increasing the federal minimum wage and getting health insurance for the uninsured.â€Å"I’m looking forward to making friends with Representative Goode, or at least getting to know him,† Mr. Ellison said, speaking by telephone from Minneapolis. â€Å"I want to let him know that there’s nothing to fear. The fact that there are many different faiths, many different colors and many different cultures in America is a great strength.†In Washington, Brendan Daly, a spokesman for the incoming House speaker, Nancy Pelosi of California, called Mr. Goode’s letter â€Å"offensive.† Corey Saylor, legislative director for the Council on American-Islamic Relations, criticized what he described as Mr. Goode’s â€Å"message of intolerance.†Representative Bill Pascrell Jr., Democrat of New Jersey, urged Mr. Goode to reach out to Muslims in Virginia and learn â€Å"to dispel misconceptions instea d of promoting them.†Ã¢â‚¬Å"Keith Ellison serves as a great example of Muslim Americans in our nation, and he does not have to answer to you, to me or anyone else in regards to questions about his faith,† said Mr. Pascrell, whose district includes many Arab-Americans.The fracas over Mr. Ellison’s decision to use the Koran during his personal swearing-in ceremony began last month when Dennis Prager, a conservative columnist and radio host, condemned the decision as one that would undermine American civilization.â€Å"Ellison’s doing so will embolden Islamic extremists and make new ones, as Islamists, rightly or wrongly, see the first sign of the realization of their greatest goal — the Islamicization of America,† said Mr. Prager, who said the Bible was the only relevant religious text in the United States.â€Å"If you are incapable of taking an oath on that book, don’t serve in Congress,† Mr. Prager said.In his letter, Mr. Goode e choed that view, saying that he did not â€Å"subscribe to using the Koran in any way.† He also called for ending illegal immigration and reducing legal immigration.Linwood Duncan, a spokesman for Mr. Goode, said the Virginia lawmaker had no intention of backing down, despite the furor.â€Å"He stands by the letter,† Mr. Duncan said. â€Å"He has no intention of apologizing.†

Human Rights And The Western World - 1846 Words

Human rights are a big topic for discussion in today’s society, especially in those areas that are suffering from turmoil involving war, strife, drought, and social stigma. According to Jack Donnelly, the most basic definition of human rights is that they are â€Å"the minimum set of goods, services, opportunities, and protections that are widely recognized today as essential prerequisites for a life of dignity, and a particular set of practices to realize those goods, services, opportunities, and protection. No more. No less† (Donnelly, 2007). Some consider human rights as strictly western phenomenon because of the consideration of the western world on human rights issues. However, human rights are not western phenomenon because it is harmful in recognizing that universal rights are actually universal, because the thought that human rights are strictly western has more political power than historical fact, and because human rights are created and considered by those i n the non-western world as well as the western world. The thought that human rights are a western phenomenon, meaning it excludes contributions and peoples of the non-western world, is inaccurate because that would mean that universal rights are not actually universal. Donnelly provides the definition of universal, writing, â€Å"Universal means ‘applies across all of a particular domain’ (rather than everywhere in the universe). 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