Tort Law Problem Answers - Free Essay Example

ISSUE Whether James can succeed in an assault Tort claim against Mele for her actions? RULE An assault is committed where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence. [1] The elements for assault are: An intentional act The absence of consent on Defendants part in this case The inducement of an apprehension of imminent contact ( An imminent battery) Is there any reasonable apprehension for reasonable battery? APPLICATION: An Intentional Act Intent is established if a reasonable person is substantially certain that certain consequences will result; likewise intent also established whether or not he or she actually intends those consequences to result. In Tuberville v Savage (1669) 86 ER 684[2] the defendant put his hand on his sword and stated that if it were not assize-time, I would not take this language from youà ¢Ã¢â€š ¬Ã¢â€ž ¢. The court held that it does not amount to an assault as the words indicated that no violence would arise. Similarly on the facts, Sia did screamed at James saying à ¢Ã¢â€š ¬Ã…“I know youà ¢Ã¢â€š ¬Ã¢â€ž ¢re out to get me and Ià ¢Ã¢â€š ¬Ã¢â€ž ¢m going to get you firstà ¢Ã¢â€š ¬Ã‚ . These words were said without provocation and will not amount to any intention that would cause harm. However on the other hand, in Stephenà ¢Ã¢â€š ¬Ã¢â€ž ¢s v Myers (1830) 172 ER 735[3], the defendant made a violent gesture at the plaintiff by waiving a clenched fi st, but was prevented from reaching him by the intervention of third parties. The defendant was liable for assault. Likewise, in the given facts, Sia also did gestured threateningly to James when she approached him. Such act did constitute an intention to cause harm to James. Moreover it did create fear into James. Therefore this element is satisfied. The absence of consent on James part in this case There is no consent on James part. This is true, as to the period of time the incident did occurred. According to the facts at hand, Sia approached James during their lunch break, which indicates that James could not have contemplate that an incident as this would occur since he would have thought Sia is just a normal kid as the rest of the other students. Hence, there is an absence of consent on James part. Moreover, James did report the incident to the school principle meaning that he has no knowledge of Siaà ¢Ã¢â€š ¬Ã¢â€ž ¢s mental illness. Therefore, these gave reasonable gro unds for absent of consent on his part as well. Was there an inducement of an apprehension of imminent battery? The plaintiff must have a reasonable apprehension of imminent injury or offensive contact. Apprehension means awareness that an injury or offensive contact is imminent and is about to occur.[4] On the facts, James is aware of the threat of harm because Sia had stood face to face with him when she gestured threateningly and screamed à ¢Ã¢â€š ¬Ã…“I know youà ¢Ã¢â€š ¬Ã¢â€ž ¢re out to get me and Ià ¢Ã¢â€š ¬Ã¢â€ž ¢m going to get you firstà ¢Ã¢â€š ¬Ã‚ . Gesturing threateningly to someone can create apprehension in the mind and can amount to assault as in Stephenà ¢Ã¢â€š ¬Ã¢â€ž ¢s v Myers (1830) 172 ER[5] where a defendant who violently gestured at the plaintiff by waiving a clenched fist amounts to assault. On the other hand, there is doubt in the question of whether words alone can constitute an assault.[6] , In Smith v Chief Constable of working (1983) 76 Cr A pp R 234[7] the defendant looked through the window of the plaintiff( a young women) at night and when she screamed he did not move but kept staring. The court held that she was frightened but could not have been frightened of personal violence as she was inside the house and defendant was outside of the house. However it can be distinguished to the facts in this case because even if Sia did make a future threat by verbally expressing it and was unable to carry out the threat it can be distinguished on the part where future threats made is usually where the plaintiff is out of the scope of danger. However in this scenario Sia is actually standing face to face when she screamed at James unlike in Smith v Chief Constable of working where the defendant was outside the house and the plaintiff was inside, hence it is likely that an apprehension of imminent battery can occur. Reasonable apprehension If a reasonable person would be frightened, then there may be assault even if batter y was impossible. In the given facts, for sure a reasonable person in James position would have felt threatened by the way Sia behaves. Even if Sia did gestured and screamed à ¢Ã¢â€š ¬Ã…“I know youà ¢Ã¢â€š ¬Ã¢â€ž ¢re about to get me and Ià ¢Ã¢â€š ¬Ã¢â€ž ¢m going to get you firstà ¢Ã¢â€š ¬Ã‚ , the nature of these word can cause fear in a person especially if that person threateningly gestured and screamed at you face to face. Moreover, the fact that James has refused to return to School and had to be transferred to another school indicates that he is in fear that such incident might occur again. Therefore a reasonable person in James shoes would have been terrified by such behavior. Conclusion: The elements above are satisfied in the facts of the present case, hence it is likely that Siaà ¢Ã¢â€š ¬Ã¢â€ž ¢s behavior amounts to assault. (b) TORT OF NEGLIGENCE ISSUE: Whether the school owe a duty of care to Mele? LAW: General Rule for Duty of Care à ¢Ã¢â€š ¬Ã…“The duty of care concerns the circumstances and relationships which the law recognizes as giving rise to a legal duty to take care.[8] It is necessary for the claimant to establish that the defendant owed them a duty of care. To establish that there is a duty to take care of another person, under the Caparo test the claimant must establish and fulfill the three elements of duty of care. They are foreseeability, proximity and in all circumstances it must be just, fair and reasonable to impose a duty of care. [9] Elements of Duty of Care: Foreseeability of damage Sufficient proximity between the parties Fair, just and reasonable In addition: Using Home office v Dorset Yacht Co Ltd (1970) AC 1004 House of Lords[10] on the test of who the duty of care is owed: Foreseeable victim Foreseeable zone APPLICATION: Foreseeability of damage The notion of foreseeability focuses on what a reasonable person would have foreseen in the circumstances.[11] As the principle of the school he should have anticipate foreseeable harm Sia might cause to other students in the future even if Siaà ¢Ã¢â€š ¬Ã¢â€ž ¢s mother had assured him that this will not happen again. Here, the school principle had already been aware of the fact that Sia is suffering from mental illness and that the prior incident which involves Sia with another student James would probably occur all over again, especially with a state of mind like Sia. As in Home Office v Dorset Yacht Co Ltd (1970) AC 1004 House of Lords[12], the Home Office owed a duty of care for their errors as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction.[13] Sufficient Proximity between the Parties Proximity focuses on the nature of a relationship between the parties. In essence, there must be a special relationship that exists between two parties in order to define the duty one owes another. On the facts here, the school has a special relationship to Mele in terms of principle and student relationship. The relationship indicates that the school principle has a duty towards its students in any circumstances in accordance to his profession. In this case, the school principle should have acted when he knew that Sia was mentally ill. Justice Winneke in Richard v State of Victoria (1969) VR 136 states that a principles duty is as follows: à ¢Ã¢â€š ¬Ã‹Å"à ¢Ã¢â€š ¬Ã‹Å"It is the need of a child of immature age for protection against conducts of others, or himself, which may cause injury, or indeed himself, joined with the fact that, during school hours, the child is beyond the control and protection of his parent and placed under the control of the schoolmaster/principle who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury or harmà ¢Ã¢â€š ¬Ã‚ . [14] Therefore, there existed a relationship between the school principle and Mele as a student. Fair, just and reasonable Even if foreseeability and proximate relationship between the parties are satisfied it must be just, fair and reasonable to impose such a duty.[15] According to the facts here, it is in the best interest of Mele as a student and if the school principle had done his job properly such harm would not occur. Therefore, it is fair, just and reasonable and a duty of care can be imposed on the school. Furthermore in using Home Office v Dorset Yacht Co Ltd (1970) AC 1004[16] House of Lords as an authority, to who is a duty of care owed? The test of duty of care includes D reasonably foresee ability of the injury claimed by P. Foreseeable victim Here in the given facts, it is more likely that the principle would anticipate foreseeable harm that Sia might cause to other students including Mele. It is possible for the principle to foresee that his inaction, which is his failure to fully take into consideration the mental illness suffered by Sia, would cause harm to Mele. Because he had prior knowledge of Siaà ¢Ã¢â€š ¬Ã¢â€ž ¢s psychotic nature which Mary (Siaà ¢Ã¢â€š ¬Ã¢â€ž ¢s Mother) had informed him that sometimes she made threats to others. Foreseeable Zone Foreseeability would establish if the foreseeable Pà ¢Ã¢â€š ¬Ã¢â€ž ¢s are people who at that time are physically in the zone where the harm maybe expected to cause physical injury. In this scenario, the principle foresees that Sia is capable of attacking her classmates because of the first incident involving a student which she also threatens. In this sense, there is more probability that the principle knew that at any-time Sia would attack any student in school like Mele. Even if the principle did not know Mele personally he still would have foreseen the possibility that Sia could have caused any harm to any student apart from Mele. CONCLUSION: All the elements of duty of care is satisfied, thus the school owes a duty of care to Mele (c) ISSUE: Whether Fine can succeed in an action in negligence against the school for the psychological harm suffered and whether the school owed a duty of care to Fine. LAW: PSYCHIATRIC ILLNESS The general principles of negli gence are used where a claimant suffers only a psychiatric illness and physical harm. However, where a claimant suffers only psychiatric injuries, additional requirements have to be met for a successful claim.[17] Distinction must be made between a primary and secondary victim in cases of pure psychiatric injuries. The use of reasonable foreseeability test is also relevant to determine the class of persons who are most likely to recover damages which also led to rely on the test of proximity when considering the physical relationship of the witness to the accident.[18] SECONDARY VICTIM This class of person are those not within the physical zone of danger but witnesses of horrific events and suffers without himself being exposed to danger.[19] In Alcock ors v Chief Constable of South Yorkshire [1992] AC 310 House of Lords[20], secondary victims must demonstrate the four Alcock criteria in order to establish liability: Close tie of love and affection Witnesses the event with their own unaided senses Proximity to the event itself or its immediate aftermath Psychiatric injury must be a result if a shocking event APPLICATION: According to the scenario, Fine is regarded as a secondary victim since she was not within the physical zone of danger but suffers without being expose to danger that occurred. Close tie of love and affection There must be evidence of the existence of a close relationship of love and affection between the victim and the witness. This will be presumed in parent and child and spouses but must be proved in other relationships.[21] In the scenario, evidence of necessary close ties had been adduced between Mele (victim) and Fine (witness). Here, Mele is Fineà ¢Ã¢â€š ¬Ã¢â€ž ¢s daughter. Therefore, it indicates a close tie of love and affection. Witnesses the event with their own unaided senses This focuses on the fact that seeing the events on television is not sufficient. On the present scenario, it can be distinguished that Fine witness the event with her aided senses since she was there at the scene and saw her daughter being carried out on a stretcher with blood pouring from his face. Hence, she is unlikely to recover from psychiatric injuries caused. Proximity to the event itself or its immediate aftermath In Alcock ors v Chief Constable of South Yorkshire (1992) AC[22], the relatives that had visited the make shift mortuary to identify loved ones were held not to come within the immediate aftermath of the event. It is a well-established rule that in order to recover damages for shock the plaintiff must have been present at the scene of the accident. On the facts of the scenario Fineà ¢Ã¢â€š ¬Ã¢â€ž ¢s psychiatric injury is a result of the immediate aftermath of the event when she saw her daughter carried out on a stretcher with blood pouring from her face. Psychiatric injury must be a result of a shocking event. Lord Ackner states that à ¢Ã¢â€š ¬Ã…“shockà ¢Ã¢â€š ¬Ã‚  in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. However, this excludes those who suffer psychiatric injury caused by buildup over a period of time.[23] On the facts of the present scenario, Fineà ¢Ã¢â€š ¬Ã¢â€ž ¢s shock involves sudden appreciation by sight of the event when she came to school and was at the scene. Therefore, seeing her daughter Mele being carried on a stretcher with blood pouring from her face gave her the sudden appreciation, thus cause her the psychiatric injury. REASONABLE FORESEEABILITY PROXIMITY-DISTANCE (AFTERMATH) It is more likely that the psychiatric injury sustained by Fine is reasonably foreseeable as a result of the school principalà ¢Ã¢â€š ¬Ã¢â€ž ¢s failure to act. This is because the principle is aware of the fact that Sia had suffered from mental illness and could have been aware of the consequences that might occur and that any person present or saw the aftermath of the event would be affected. In McLoughlin v Oà ¢Ã¢â€š ¬Ã¢â€ž ¢ Brian [1983] 1 AC 410[24], Lord Wilberforce stated that the aftermath doctrine in which one who from proximity comes very soon upon the scene should not be excluded and by way of reinforcement of aftermath cases.[25]Therefore Fine should not be excluded as she had witnessed the aftermath of the event. CONCLUSION: By applying these principles, it is likely that Fine would succeed in bringing an action against the school for her psychiatric injury. BIBLIOGRAPHY Fraser, Ian, LW 203 Torts I: Course Book, Sera Rokodi, 2011. K. M. Stanton, The Modern Law of Tort, (1994), Sweet and Maxwell, London. Michael A. Jones, Textbook on Torts, (8th Ed, 2007), Oxford University Press, New York. Tony Weir, A Casebook on Tort, (10th Ed, 2004), Sweet and Maxwell, London. Cases Alcock ors v Chief Constable of South Yorkshire [ 1992] AC 310 McLoughlin v Oà ¢Ã¢â€š ¬Ã¢â€ž ¢ Brian [1983] 1 AC 410 Home Office v Dorset Yacht Co Ltd [1970] AC 1004 Richard v State of Victoria (1969) VR 136 Smith v Chief Constable of working (1983) 76 Cr App R 234 Stephenà ¢Ã¢â€š ¬Ã¢â€ž ¢s v Myers (1830) 172 ER 735 Tuberville v Savage (1669) 86 ER 684 [1] W.V.H Rogers, Torts,(1994)p58 [2] Tuberville v Savage (1669) 86 ER 684 [3] Stephensà ¢Ã¢â€š ¬Ã¢â€ž ¢s v Myers (1830) 172 ER 735 [4] K. M. Stanton, The Modern Law of Tort, (1994) p 58 [5] ibid [6] Above n3 p188 [7] Smith v Chief Constable of working (1983) 76 Cr App R 234 [8] Michael A. J, Textbook on Torts, (8th Ed, 2007) p31 [9] Tony. Weir, A Casebook on Tort, (10th Ed, 2004) p46. [10] Home Office v Dorset Yacht Co Ltd [1970] AC 1004 [11] Michael A. J, Textbook on Torts, (8th Ed, 2007) p37 [12] Home Office v Dorset Yacht Co Ltd [1970] AC 1004 [13] Cited in K. M. Stanton, The Modern Law of Tort, (1994) p27 [14] Richard v State of Victoria (1969) VR 136 [15] Michael. A. J, Textbook on Torts, (8th Ed, 2007) p35. [16] Home Office v Dorset Yacht Co Ltd [1970] AC 1004 [17] I.Fraser, LW 203 Torts I, (Sera Rokodi, 2011) pg 5.24 [18] n [19] W.V.H. Rogers, Torts, (1994) p120 [20] Alcock ors v Chief Constable of South Yorkshire [1992] AC 310 [21] Tony. Weir, A Casebook on Tort, (10th Ed, 2004) p209-210 [22] Alcock ors v Chief Constable of South Yorkshire [1992] AC 310 [23] Cited in above n22 p208 [24] McLoughlin v Oà ¢Ã¢â€š ¬Ã¢â€ž ¢ Brian [1983] 1 AC 410 [25] Michael. A. J, Textbook on Torts, (8th Ed, 2007) p208

William Shakespeare s Romeo And Juliet - 1186 Words

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There`s Always Laughter to Life - 1459 Words

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Relevance of Research in the Technology Business - 1851 Words

1. Albert Einstein said The formulation of a problem is far more often essential than its solution, which may be merely a matter of mathematical or experimental skill. To raise new questions, new possibilities, to regard old problems from a new angle require creative imagination and marks real advance in science. What is the value of this statement in terms of the research process? What is the relevance and relationship of this statement to the technologically advancing business world? Where do these questions allow us to go? As far as the value in regards to the research process, it is apparent that any kind of planning and Designing is usually the most significant stage of the research process. The method of which you design and then gather all of the data together is more significant than the examination of the data and succeeding understanding of the result of the evaluation. People that are familiar with the awareness of the software and the right equation will be able to discover the results nevertheless it will most likely take a planner and designer to properly understand a manufacture. Such as, for example, a worker can be given some data and with their understanding of EXCEL (and their can be some assistance from the internet), the worker will be able to get the regression equation. A worker many not have been able to contribute in the research design and data collection (or they did not take anytime to learn the design of the data). So even though they mightShow MoreRelatedRegulatory Compliance Controls1712 Words   |  7 Pagesrisk, and cost of equity. Moreover, remediation of internal control deficiencies was found to result in statistically significant and economically important changes to the cost of equity (from 50 to 150 basis points). 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Parent Child Relationship Free Essays

AN ISSUE OF LOCAL CONCERN – PARENT CHILD RELATIONSHIP In life, it is a reality that we become what we have been involved with and taught since we were born. The environment we live is crucial to the way our way of thinking will develop, and therefore, it will have a great impact on  our actions and decisions. Parents play an important role in our lives as our examples and models. We will write a custom essay sample on Parent Child Relationship or any similar topic only for you Order Now Parents and their children hold a special relationship with each other. The kind of parent-child relationship has a huge effect on the way that the child will turn out. Parenting requires a great deal of adaptation. The parents want to develop a strong bond with their child but they also want to maintain a healthy marital relationship and adult friendships. The major cause of problems in relationship between parents and children is the generation gap. Nowadays, parents try to force the children into disciplined life. For instance, they ask the children to shut their mouth when they are expressing the views about some family issue while trying to manipulate their decisions. Due to this children don’t open up to their parents and this leads them to be suspicious of their children. When parents are in the pursuit to discover exactly what is going on, the children tend to lose trust in their parents, feeling that their parents are always trying to catch them doing something wrong. Parents, on the other hand, are more experienced in dealing with life’s problems. They try to protect their children from the problems they had to face when they were young. They try different means to do this and these means have a great impact on the parent child relationship. If the parent frequently uses punishments instead confrontations, the mental state of the child can be spoilt. But if the parent mostly spares the rod also, it spoils the child. There is no perfect way of parenting; it’s more of trial and error. But parents and children can have a very good relationship only when the child as well as the parent makes an effort. Chatting together and going out for a movie or a family picnic once and giving them your presence rather than presents is more effective. As the famous saying goes†¦. †Don’t try to perfect your child, try to perfect your relationship† How to cite Parent Child Relationship, Papers

Native Son Characters Essay Example For Students

Native Son: Characters Essay Native Son: CharactersRichard Wrights novel, Native Son, consisted of various main and supporting character to deliver an effective array of personalities and expression. Each characters actions defines their individual personalities and belief systems. The main character of Native Son, Bigger Thomas has personality traits spanning various aspect of human nature including actions motivated by fear, quick temper, and a high degree of intelligence. Bigger, whom the novel revolves around, portrays various personality elements through his actions. Many of his action suggest an overriding response to fear, which stems from his exposure to a harsh social climate in which a clear line between acceptable behavior for whites and blacks exists. His swift anger and his destructive impulses stem from that fear and becomes apparent in the opening scene when he fiercely attacks a huge rat. The same murderous impulse appears when his secret dread of the delicatessen robbery impels him to commit a vicious assault on his friend Gus. Bigger commits both of the brutal murders not in rage or anger, but as a reaction to fear. His typical fear stems from being caught in the act of doing something socially unacceptable and being the subject of punishment. Although he later admits to Max that Mary Daltons behavior toward him made him hate her, it is not that hate which causes him to smother her to death, but a feeble attempt to evade the detection of her mother. The fear of being caught with a white woman overwhelmed his common sense and dictated his actions. When he attempted to murder Bessie, his motivation came from intense fear of the consequences of letting her live. Bigger realized that he could not take Bessie with him or leave her behind and concluded that killing her could provide her only merciful end. The emotional forces that drive Bigger are conveyed by means other than his words. Besides reactions to fear, his actions demonstrate an extremely quick temper and destructive impulse as an integral part of his nature. Rage plays a key part in his basic nature, but does not directly motivate the murders he commits. Rage does not affect Biggers intelligence and quick thinking and it becomes evident during the interview with Briton. The detective makes Bigger so angry that the interrogation becomes a game to Bigger, a game of logic and wills, of playing the stupid negro, and telling the man exactly what he wants to hear. The game Bigger plays during the interrogation shows his great intelligence and ability to think q uickly on his feet. Bigger also displayed his intelligence in the creation of the ransom note. Using the situation to his advantage, Bigger wrote a ransom note to extort Marys parents for money. To make the note even more convincing and to dissuade blame from himself, Bigger signs the note with the communist symbol of a hammer and sickle. Although the book revolves around Bigger he possesses few good qualities, which get his horrendous actions negate, making him an anti-hero. He possess the violent tendencies to commit rape, extortion of the dead girls parents, robbing, and killing innocent people. These traits do not portray a simple victim of circumstance, but a habitual criminal acting out against a society. While Bigger dominates the story, his appalling actions make him a man that the reader can not look upon as a hero. In fact the author punishes the anti-hero character by condemning him to death for his crimes. One of the two most sympathetic characterizations of white persons in the novel comes from the character of Jan Erlone, Mary Daltons friend. He exhibits an enthusiastic personality and represents an idealistic young organizer for the Communist party. Marys parents and their servant Peggy distrust his motives. Bigger initially expresses a distaste for reds when responding to Jans friendly advances during their first meeting. While receiving distrust from those around him, Jan retains a simple belief in the equality for all men, regardless of social class or race. Throughout Jans first meeting with Bigger, he regards Bigger with the utmost respect. During the course of the night, Jan sits in the front of the car with Bigger, eats with him, drinks with him, and speaks to